Supreme Court faces decision on feds strong-arming social media

Sen. Eric Schmitt says the key to derailing government censorship is to make the bureaucrats pay — literally.

The Missouri Republican helped initiate a lawsuit that tests the bounds of what government agencies can do to pressure social media companies to shut down posts the federal government doesn’t like. The Supreme Court is slated to hear oral arguments on the case Monday.

Win or lose, Mr. Schmitt says, the real way to break the government’s penchant for silencing its critics is to make the censors personally liable for their actions.

His Censorship Accountability Act would create what is known in legal-speak as a cause of action for someone to sue a government employee for violating First Amendment rights, creating an exception to the legal immunity government actors often enjoy.

“This is foundational to the American idea and what it means to be American: free speech,” Mr. Schmitt told The Washington Times. “I do think there needs to be greater accountability here.”

He has been on the front lines of the censorship battles dating to his time as attorney general in Missouri, where he joined with Louisiana to bring the groundbreaking case that accused the federal government of colluding with Facebook, Twitter and other social media companies to limit eyeballs on ideas the administration didn’t want the public to see.

That included claims of election malfeasance in 2020, as well as skepticism of the government’s COVID-19 messaging and its push for vaccinations.

Government officials said they were combating misinformation. Mr. Schmitt and his fellow challengers said it was raw censorship.

As the case wound its way through the courts, they unearthed startling evidence of just how far the government went. That included emails from White House officials demanding that posts be taken down “ASAP” or urging “slowing” of other posts — seemingly an attempt to limit views. In one message, a White House official said staff was “considering our options” for retaliating against the platforms.

Mr. Schmitt said that proved the government was “coordinating, colluding and coercing Big Tech.”

Lower courts largely agreed.

“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content,” the 5th U.S. Circuit Court of Appeals concluded in a ruling in September. “In doing so, the officials were persistent and angry. And, more importantly, the officials threatened — both expressly and implicitly — to retaliate against inaction.”

The Biden administration counters that it was advocating only for its positions and all final decisions were made by the privately owned social media companies, which often rejected its entreaties.

“But so long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern — even if government officials state their views in strong terms, and even if private actors change their speech or conduct in response,” Solicitor General Elizabeth Prelogar told the justices in her main brief in the case.

Lower courts issued injunctions against some government actors putting boundaries on their communications with social media companies, but the Supreme Court put those on hold pending its ruling.

The case has drawn intense interest, with briefs from social media companies, civil liberties groups, members of Congress and others. Also weighing in are some social media political influencers and the journalists behind the “Twitter Files,” which reported on the disconcerting relationship between the government and the social media platform then known as Twitter.

Legal observers say the court has a chance to set new standards for a tricky area of First Amendment law, where it’s not always clear when government action crosses the line from advocacy to censorship. All sides agree that the government has a right to state its position and cajole others to agree, but it cannot coerce.

Mr. Schmitt says the government became “a vast censorship enterprise,” and he hopes the justices use the case to start to unwind it.

“It’s the most important free speech case in the history of our country because we’ve now moved into a place where a lot of the debates we have aren’t just in the physical town square but the virtual town square,” he told The Times.

His proposed bill also grew out of what he learned during the case.

He said citizens can sue state officials for First Amendment violations, and they can sue federal officials for Fourth Amendment violations such as an unlawful search or seizure, but they cannot sue federal officials for First Amendment violations.

Adam Candeub, a law professor at Michigan State University who represented the American Free Enterprise Chamber of Commerce in a brief siding with Mr. Schmitt’s argument, said the legislation would help no matter what the outcome at the high court.

“Even if we win in Murthy, it would be very difficult to get damages because federal employees would have qualified immunity,” he said. “This bill would make damages feasible to obtain from government officials who censor citizens.”

Ashutosh A. Bhagwat, a professor at the University of California, Davis, School of Law, wrote in a blog post that the bill would be the “best present” Congress could give to the Islamic State terrorists because it would force the FBI to limit its attempts to get social media to remove terrorist accounts.

“I don’t think there is a problem with making federal employees liable, but I think it’s a terrible idea. It just makes it harder to do their job,” Mr. Bhagwat said. “It just doesn’t do anything.”

The case is Murthy Surgeon General v. Missouri. Vivek Murthy is the surgeon general, which is one of the offices accused of engaging in censorship.

A decision in the case is expected by the end of June.