The Supreme Court Cannot Ignore the National Security Implications of the So-Called 'Jawboning' Case

https://www.justsecurity.org/93495/the-supreme-court-cannot-ignore-the-national-security-implications-of-the-so-called-jawboning-case/

On Monday, the Supreme Court will hear argument about whether to uphold a vaguely worded order from the Fifth Circuit that arguably bars White House officials and several executive branch agencies, including the FBI, from urging social media companies to take down disinformation and misinformation that drives political violence, undermines democratic processes, and makes our nation less secure.

As the Court considers Murthy v Missouri—just as it should in considering the NetChoice “anti-censorship” cases argued last month—it must recognize not only the substantial national security and public safety harms from disinformation and extremist content on social media, but also the necessity for government officials to be able to communicate freely with social media companies about the abuses of their services by malign actors. And that includes the government urging those platforms to take action.

The case before the Court on Monday was brought by five social media users and the states of Missouri and Louisiana, who alleged that the government had engaged in a sprawling campaign to threaten social media companies into removing or suppressing content expressing disfavored viewpoints, particularly related to the COVID pandemic, vaccines, and election fraud.

The district court and the U.S. Court of Appeals for the Fifth Circuit agreed, holding that certain federal officials likely had “coerced” the companies to remove disfavored speech by threatening adverse action if they did not, or had “significantly encouraged” them to remove such content, either way running afoul of the First Amendment. For example, the Fifth Circuit concluded that the FBI—by warning social media companies of “hack and dump” operations by foreign “state-sponsored actors” that would spread misinformation about the 2022 midterm elections on their platforms—had likely engaged in prohibited coercion not because the bureau’s warnings conveyed any actual threat of adverse action from failure to take down the misinformation, but because of the inherent coercion that comes from a request from law enforcement.

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