First Amendment Challenges Against Social Media: A Democratic Judgment against Moody vs. NetChoice v. Paxton

For example, a bipartisan group of current and former election officials submitted a brief emphasizing the importance of allowing people in their roles to “remain free to communicate with social media platforms to share accurate information about when, how, and where to vote; to correct false election information; and to address violent threats and intimidation directed at their own ranks.” They also said it’s important that election officials and government agencies are able to respond when social media companies reach out for help in promoting accurate voting information and limiting the spread of false content.

Members of the nonpartisan Election Protection coalition said they fear a ruling for the states would “endanger the right to vote as information sharing between and among civil society, government, and social media companies is essential to prevent malicious election interference and voter suppression efforts.”

“A too-sensitive test for coercion could have two negative consequences,” the committee wrote. “First, it could lead to the chilling of the free flow of information from government sources to the news media. For example, it could be used by the plaintiffs to pursue fishing expeditions that are burdensome for them because they believe to be evidence of conspiracy among journalists and public officials.

The American Medical Association (AMA) stated in a brief that the Biden administration has a compelling interest in fighting vaccine misinformation. The American Medical Association states that vaccinations save lives.

But the smaller and conservative-oriented Association of American Physicians and Surgeons (AAPS) wrote in a brief that accepting the American Medical Association’s assertion would “green-light government censorship” of people like Robert F. Kennedy, Jr., a presidential candidate and leading voice in the anti-vaccine movement.

The AAPS said that there could be other types of speech disfavored by the Biden administration, such as criticism of trans procedures and late-term abortion.

These arguments come just weeks after the court heard another set of First Amendment challenges involving social media. In those cases, Moody v. NetChoice and NetChoice v. Paxton, the court considered whether state laws legislating how social media companies could moderate posts on their sites violated the platforms’ own First Amendment rights.

Hans pointed out that all of the briefs were written in support of the parties, even from the First Amendment groups. He said that it was a sign of the theoretical messiness of the issues.

Hans said it was clear what happened and one specific instance of government interference, but that we have a lot of actions that are not necessarily created equal. The Supreme Court may not be the best place to sort out some of the difficult questions.

Gautam Hans, associate director of the First Amendment Clinic at Cornell Law School, anticipates Murthy v. Missouri being a difficult case for the court to parse through, since the states identify a vast range of different actions by different parts of the government with which they take issue.

The US Chamber of Commerce, a broad business group, warned the court in its brief against allowing the theory of state action to be used to punish private entities. The remedy for government interference with speech choices should be to prevent the government from imposing injunctions that limit the exercise of the rights of coerced private parties.

Jones said there is a standard for when conduct of a private actor can be turned into state action. “And therefore, that private actor can be held liable because they’re essentially acting at the behest of the government.”

But it’s not enough for a social media page to simply belong to a public official. Private conduct and state action are both governed by the state’s authority and can include private lives and constitutional rights such as the right to speak about their jobs.

The court found that the commission was not interested in educating or inform the book distributors about how to comply with the law but rather in intimidate them into suppressing and censoring content that the commission didn’t like. The government went too far in this instance, since it was recognised that the authorities can advise or persuade people to act in certain ways. “When the acts become coercive, and when they basically apply this unrelenting pressure so that the intermediaries don’t publish speech because the government doesn’t like it, that does, in fact, violate the Constitution.”

The Rhode Island commission created to evaluate whether books were appropriate for minor children was used in the case of Bantam Books. The court ruled that the commission effectively coerced book distributors to suppress certain works through intimidation.

Social Media Users Cannot Be Posted on Their Twitter Accounts: The 2023 July 2023 Injunction against the Biden Administration in Missouri and the Supreme Court of Appeals

Some parts of the Biden administration were ordered to stop using social media in July 2023 by a federal district court. The Fifth Circuit Court of Appeals upheld a large portion of the preliminary injunction, although it narrowed the scope. Soon after, the Supreme Court lifted limits on the administration’s communications while considering the case.

It may be because of Murthy that this legal argument sounds like it is familiar. The original Missouri state AG’s press release about the lawsuit references Hunter Biden’s laptop, the Wuhan lab leak theory, and the efficacy of masking.

Several interest groups wrote to the court that they should be careful not to use a standard that harms their work, no matter how the justices rule.

In Michigan and California, outraged citizens sued public officials who did that. In one case, two elected local school board members in Poway, Calif., blocked persistently critical parents from their social media pages. The local gadfly sued the city manager, James Freed, after he was prevented from using his Facebook page.

It was suggested that simple statements could make a difference in the determination. If Freed had had a personal page on his account, he would be entitled to a presumption that all of his postings were personal.

Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University said in a statement the court was “right to hold that public officials can’t immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.”

Gary Lawkowski, a partner in the firm, said in an email that the opinion may be the biggest impact on public officials who want to put out a notice warning them of a legal problem.

The Knight Institute challenged former President Donald Trump in 2017 over blocking users from his @realDonaldTrump Twitter account. They argued his account was a “public forum” where people could not be excluded for their views, and the lower courts agreed. In 2021, when Trump was no longer in office, the Supreme Court ordered the lower court to vacate a ruling against Trump and dismiss it as moot.

Comments on City Manager Kevin Freed’s “Political Directives” Page and the State Attorney General’s Phenomenology

Kevin Lindke claimed that city manager Freed had violated his right to speak by blocking him from responding to things he said on his page.

“Mr. Freed was… putting out policy directives,” Lindke said. This was the only place that information was being relayed to the community from.

The city manager Freed denied that he had answered questions from the public and pointed them to sites for local information. He said that 80% of the posts were his personal family photos and pictures of his dog. “If I hadn’t been in charge of that page, I would’ve never posted pictures of my little girls or my wife.”

Justice Amy ConeyBarrett wrote that “a post that explicitly invokes state authority to make an announcement not available elsewhere is official and members of the public are entitled to make comments in response.” The owner of the page may well be able to block comments on posts that simply repeats or shares information that is already available.

She said the most important consideration when evaluating a page like Freed’s is the content.

“I do think they tried to create a simpler test,” she says. But she adds that it remains to be seen how workable the new test is, especially when a public official mixes personal and official material on his or her page.