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John Fortier

Senior Fellow, American Enterprise Institute

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SCOTUS case on threat of disinformation raises thorny questions

Mar 28

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The Supreme Court recently heard arguments concerning government communications with social media platforms in Murthy v. Missouri. Plantiffs in the case claim that government agencies pressured social media companies to remove or restrict posts spreading disinformation about vaccines, elections and COVID-19.

Straight Arrow News contributor John Fortier delves into the complex questions raised by the Murthy case. He concludes that while the case won’t resolve all the issues at hand, clarifying the boundaries of communication between the federal government and influential technology platforms is an important undertaking.

First, there is the question about the power of federal government and how it’s used. There is a whole range of activities that the government might engage in, from strongly demanding that social media companies take down posts, to strongly encouraging, to merely pointing out errors made in posts about important public governmental functions or interests.

Second, there are activities of government that seem unobjectionable. On the one hand, government might point out illegal activities on platforms such as terrorist recruitment, human trafficking, or explicit violent threats to discourage voting. At the other end of the spectrum, politicians, election offices, and other government actors often speak to reporters, ask them to correct the record in their reporting. It’s hard to see how these activities would pose legal, constitutional or even policy problems.

Third, there is, however, worry that a regular program of government agency partnership with social media platforms strays into the area of government censorship. If the FBI has regular meetings with social media platforms, identifying content that it disagrees with, and follows up to ensure that certain users or posts are removed, it seems more like direct government action.

The Supreme Court has been hearing cases about government regulation of social media platforms. The questions raised are thorny, especially on how government might weigh in on information on the running of elections. For example, should federal agencies pressure social media companies to take down what they see as misleading content about elections. among the several cases before the Supreme Court recently, is the Murthy V. Missouri case, where it is alleged that government agencies use their power to pressure social media companies to take down or limit posts and users that spread misinformation about vaccines, elections, and other matters. First, there is the question about the power of federal government and how it’s used. There is a whole range of activities that the government might engage in from strongly demanding that social media companies take down posts, too strongly encouraging to merely pointing out errors made posts about important public governmental functions or interests. Second, there are activities of government that seem unobjectionable. On the one hand, government might point out illegal activities on platforms such as terrorist recruitment, human trafficking, or explicit violent threats to discourage voting. At the other end of the spectrum, politicians election offices and other government actors often speak to reporters, ask them to correct the record in their reporting. It’s hard to see how these activities would pose legal, constitutional or even policy problems. Third, there is, however, worry that a regular program of government agency partnership with social media platforms strays into the area of government censorship. If the FBI has regular meetings with social media platforms, identifying content that it disagrees with, and follows up to ensure that certain users or posts are removed, it seems more like direct government action. Fourth, government pressure on election related materials is more problematic at the federal level, as states run their elections in very different ways. If a secretary of state or local election official were to push for accurate information about running elections, it would more likely be tailored to the running of elections in that state. It would be clear about election deadlines and voting procedures in that particular state. If, however, a federal government agency is promoting a broad message such as mail voting is safe, or photo identification requirements are safe. That message coming from the federal government might cut against the messages that individual states want to send to promote about their elections. And the broader the message that has promoted the more ham handed it seems coming from a federal agency. Fifth, there are many institutions of government that deal with elections at the federal, state and local level. At the federal level, none of these agencies directly run elections. But the Election Assistance Commission, Federal Election Commission, and agencies in the Department of Justice, defense and homeland security, all have some role relating to elections. But not all of these institutions have a mission defined by law to promote or disseminate information or combat misinformation. The Election Assistance Commission does, for example, have the role of acting as a clearinghouse of information about state voting practices, which includes conducting a survey of election officials. The agency’s role is authorized by law, and the agency has a clear sense of the lane it should be in. Other agencies, especially those with enforcement powers, do not always have information promotion missions defined by law. Clearly, some forms of government communication with social media and other media platforms will be permitted by courts. But agencies that stick to rules more clearly defined by law will be on stronger ground. We have only started to wrestle with these difficult questions of government interaction with and regulation of social media platforms. The recent court cases will not resolve all of these issues. But a good guide for improving election information would likely stress the importance of information from state and local election officials about a law Christians in their own state, a clarity of mission, preferably in law for federal agencies, and some skepticism of integrated government partnerships with social media platforms that lead to limiting legal debate about election policy.

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