The Supreme Court's ruling on Wednesday that the government can communicate with social media companies about controversial content sidestepped deciding when such communications can violate the First Amendment. Still, it answers a pressing question in an election year about the extent to which the government and tech firms can share information about foreign influence campaigns intended to sway American voters.
The attorneys general of Missouri and Louisiana, along with five individuals, accused government officials of illegally pressuring platforms, including Facebook and Twitter (now called X), to remove posts about the 2020 election and COVID-19, which they described as a "massive, sprawling federal 'Censorship Enterprise.'" The Biden administration argued it was exercising its own First Amendment rights to express its views about matters of public interest.
Wednesday's ruling in Murthy v. Missouri found the plaintiffs didn't show that the social media companies — which have their own rules limiting certain content — took down posts because of government pressure. "While the record reflects that the Government defendants played a role in at least some of the platforms' moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgement," Justice Amy Coney Barrett wrote in the majority opinion.
"The Court’s decision in Murthy underscores the importance of protecting online services’ First Amendment right to editorial judgment,” Carl Szabo, vice president and general counsel at NetChoice, a trade group representing tech companies including Facebook owner Meta, YouTube owner Google, and X, said in a statement.
Missouri Attorney General Andrew Bailey vowed to "to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all," in a post on X.
But even as the case brings clarity heading into the presidential election, it's just one element in a right-wing legal and political campaign that frames efforts to combat false and misleading information about consequential topics, including voting and health, as censorship.
That assault has already had widespread reverberations, from disrupting the work of government agencies meant to safeguard voting to subjecting researchers studying online harms to harassment and even death threats. One prominent research team at Stanford has recently lost its leadership and much of its staff, and faces an uncertain funding future. A project the Stanford team co-led monitoring election misinformation has been shuttered.
Add to that big changes at social media platforms, many of which have eased or eliminated policies intended to curb the spread of viral falsehoods and conspiracy theories about voting — including former President Donald Trump's persistent false claim that the 2020 election was stolen from him.
Tech companies played up government ties in 2020
That's a stark change from the run-up to the last presidential election. Then, social networks such as Facebook were eager to promote their collaborations with each other and with government partners, to show they had made improvements since 2016, when Russian operatives tried to use social media to sway American voters.
"I remember sitting there watching these press releases in 2020 about the companies saying they were collaborating with each other and the government to remove foreign interference in the election," said Evelyn Douek, an assistant professor at Stanford Law School who studies the regulation of online speech.
For months leading up to the 2020 election, there were all-day meetings between Silicon Valley companies and national security officials to discuss threats and joint tabletop exercises gaming out how they would respond to attacks.
Today, such announcements would be "wild and completely unimaginable," Douek said, amid the wake of the Republican pressure campaign.
While companies including Facebook owner Meta and YouTube owner Google continue to put out information on their ongoing election integrity efforts, they have not sought to advertise their interactions with governments.
Tech companies have also laid off some staff who worked on trust and safety. Meta is shutting down a data analysis tool popular with journalists and researchers and replacing it with a content library available to a smaller group. Meanwhile, upheaval at Elon Musk's X and the proliferation of newer platforms with fewer guardrails has further fragmented the online information ecosystem.
"We've lost a lot of transparency into what's going on online … and these companies are a lot less open than they were four years ago because of, in part, I'm sure, all of this scrutiny and attack," Douek said. "And so it's just going to be really hard to work out what's going on."
U.S. government efforts curtailed
Even as intelligence officials warn that Russia and other foreign adversaries continue their attempts to amplify political divisions among Americans, undermine confidence in democratic institutions, and promote their own interests, the U.S. government has abandoned or pulled back from some efforts to respond to those threats.
In 2022, a Department of Homeland Security working group meant to coordinate responses to false and misleading claims about security issues including elections and natural disasters was scrapped after Republicans painted it as an attack on free speech.
Last year, the Federal Bureau of Investigation stopped meeting with social media companies to share information about foreign influence campaigns after a district court judge issued an injunction in the case now known as Murthy v. Missouri.
Officials at DHS's cybersecurity and infrastructure security arm, CISA, told NPR last year it had no contact with any social media companies on Election Day in 2023. The agency also stopped using its own website to debunk election misinformation in real time.
CISA and the FBI are two of the agencies central to Murthy v. Missouri, and have also been the targets of a separate House Judiciary Committee investigation that accuses government agencies, tech companies and researchers of coordinating to illegally stifle conservative voices.
More recently, both the FBI and CISA have resumed some communications with social media platforms, Sen. Mark Warner, D-Va., who chairs the Senate Intelligence Committee, said last month. Still, government officials remain wary about calling out false election claims, including deepfakes generated by artificial intelligence, unless they clearly come from a foreign actor and pose "sufficiently grave harm," NBC News reported.
Researchers hit with big legal bills
The attacks have also taken a toll on researchers, whom the House Judiciary Committee's probe accuses of acting as government proxies to carry out censorship. A lawsuit brought against researchers by some of the Murthy plaintiffs and America First Legal, an organization run by former Trump adviser Stephen Miller, makes similar claims. But the publicly available evidence doesn't support those accusations.
Universities and independent research groups have been flooded with document requests and subpoenas, racking up hefty legal fees and taking time away from their core work. Individual researchers and even undergraduate students working in the field have been harassed and attacked online.
The pressure campaign "has had a wide and deep effect on the field," said Darren Linvill, a professor at Clemson University who co-directs its Media Forensics Hub. That includes chilling communications with platforms and government agencies, making some researchers less willing to speak publicly, and, perhaps most critically, disrupting the flow of money into disinformation research.
"There's no question that it's affected funding in this space," Linvill said. "It's not available like it was once. It's really dried up."
After news broke this month that the Stanford Internet Observatory's founding director had stepped down and the university hadn't renewed key staff contracts, many on the right took it as a victory.
"Free speech wins again!" Rep. Jim Jordan, R-Ohio, who has led efforts to discredit content moderation work and research through his chairmanship of the House Judiciary Committee, posted on X.
Stanford University said it is not shutting down the Internet Observatory "as a result of outside pressure" but acknowledged the group does "face funding challenges as its founding grants will soon be exhausted." The Election Integrity Partership, a joint project with the University of Washington, which studied viral election rumors and falsehoods in 2020 and 2022 and became the subject of conspiracy theories, is not conducting similar work this year.
Heading into November's election, it all raises alarms for Linvill.
"This is a whole of society problem to face and that takes communication between different types of organizations," he said. "There's more bad actors spreading disinformation, both state actors and even for-profit actors now working to spread disinformation. And even though we're aware of the problem, I feel like there are fewer good guys trying to do something about it than there were a few years ago."
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