One Supreme Court Term Will Have Big Implications for the First Amendment: Report

The Supreme Court’s 2023-2024 term is marked by a series of cases that have significant implications for the First Amendment, particularly in the context of social media.

Aaron Terr, the Foundation for Individual Rights and Expression (FIRE) director of public advocacy, conveyed the gravity of these cases.

“Among other important free speech issues, the Court will address the government’s authority to regulate social media, government officials’ ability to block their online critics and limits on the government’s power to pressure digital platforms and other private actors to restrict speech,” Terr said.

A notable case under the Supreme Court’s review is Murthy v. Missouri. This case gained prominence after a district court judge issued an injunction in July, preventing the Biden administration from collaborating with social media companies to censor speech. The Supreme Court’s decision to hear this case, alongside others, signals a growing interest in clarifying First Amendment law as it applies to social media and government actions.

The docket includes multiple First Amendment cases, such as a landmark case brought by the attorneys general of Missouri and Louisiana. This case revealed extensive government censorship efforts, where officials pressured social media companies to restrict speech on various topics, including COVID-19 and elections.

“This term is shaping up to be the most consequential one for the First Amendment in decades,” Terr reiterated. He highlighted the significance of these cases, which include Murthy v. Missouri, challenging the federal government’s communication with social media companies to censor speech, and NRA v. Vullo, a lawsuit by the National Rifle Association against a New York official who pressured banks not to do business with them.

Terr observed “clear parallels” between these cases, noting, “Each case involves government officials exceeding constitutional boundaries by coercing private companies to censor or dissociate from speakers expressing views those officials dislike.”

Murthy v. Missouri, previously known as Missouri v. Biden, followed a federal district court judge’s injunction barring the Biden administration from coordinating with social media companies to censor speech. Judge Terry A. Doughty, a Trump appointee, found evidence of a substantial effort by defendants from the White House to federal agencies to suppress speech based on its content.

Justice Samuel Alito expressed concern over the Supreme Court’s decision to pause the injunction while hearing the Biden administration’s appeal. “At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news,” Alito wrote in October. “That is most unfortunate.”

The NRA case, while not directly related to social media, deals with similar issues of government overreach. The Second Circuit in 2022 found that the NRA failed to prove New York’s Department of Financial Services Maria Vullo “crossed the line between attempts to convince and attempts to coerce.” The NRA argues that this rationale allows government officials to financially blacklist their political opponents.

Additionally, the Supreme Court will hear challenges against laws in Texas and Florida intended to crack down on censorship, brought by NetChoice, a trade association with members like Google and Meta. The Fifth Circuit backed Texas’ law prohibiting viewpoint censorship in September 2022, stating that corporations do not “have a freewheeling First Amendment right to censor what people say.” Conversely, the Eleventh Circuit found Florida’s law likely unconstitutional in May 2022.

Terr emphasized, “The government shouldn’t have the power to censor social media users by proxy or interfere with social media platforms’ editorial discretion, period.”

The cases mentioned will be heard in the spring, though dates for oral arguments are not yet scheduled. In late October, the justices heard arguments in two other First Amendment cases, Garnier v. O’Connor-Ratcliff and Lindke v. Freed, involving public officials who blocked constituents online.

The Supreme Court might also agree to hear a First Amendment case challenging bias response teams on university campuses and another case involving a county’s “buffer zone” law around abortion clinics, aimed at restricting pro-life sidewalk counseling.