Media-bar Committee

• Year: 2025
• Citation: Vol. 94 No. 2 Pg. 11
• Pages: 11

Media-Bar Committee No. 94 J. Kan. Bar Assn 2, 11 (2025) Kansas Bar Journal April, 2025

The High Court Leaves Open the Federal Government's Right to Limit Disinformation on Social Media

By Julie Parisi^[1], Shareholder, Seigfreid Bingham, PC

The fight against disinformation is so daunting, nebulous, and never-ending that when tasked with writing an article about it in the Media-Bar's column for the KBA Journal, it took weeks to narrow down how to tackle the topic.

So I started with the very purpose of the Media-Bar Committee: to serve as a liaison among the bar, the bench, and the news media and facilitate a continuing exchange of views and recommending actions to address issues that emerge.

Which then led me to take a step back and think about a forum where the bench, bar, and media might present their views about this disinformation — and address it as a matter of law. As it turns out, that forum is the Supreme Court of the United States, and last summer, the Court did address those differing views of disinformation — but only up to a point.

The case in question is Murthy v. Missouri^[2]. Seven plaintiffs — five individuals and the states of Missouri and Louisiana — sued several federal agencies under the Biden Administration for infringing on their First Amendment rights. The individual plaintiffs, consisting of three doctors, a news website, and a healthcare activist, and alleged the agencies exerted undue influence over social media platforms, including YouTube, Facebook, and Twitter, in order to censor content that both limited plaintiffs' First Amendment right to freedom of expression in posting content on the platforms. Plaintiffs also complain that these same agencies limited their right to see content posted by others. The content included divisive topics, including the COVID-19 lab leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story.^[3]

An important principle to keep in mind is that while private entities, which are not subject to the First Amendment, may publish or restrict content, government officials may not, as a matter of law, coerce those private entities to suppress or restrict speech.^[4]

Ultimately, the majority found for the agencies that limited the content — but it did not rule that the agencies had the right to pressure social media companies to limit or censor what they considered to be disinformation. Rather, it was a procedural win. But the procedural win was still, in a sense, a victory for the fight against disinformation. A dive into the opinion below reveals why.

Underlying Facts

Plaintiffs' grievances began in 2020, when social media platforms, relying on their content-moderation policies and procedures, removed, demoted, or fact-checked user content that posted false or misleading information about the 2020 election cycle and the COVID-19 pandemic.^[5] These content-moderation policies were not new; in 2016, Facebook fact-checked false or misleading claims about the elections and announced a comprehensive fact-checking protocol when critics claimed Facebook had not done enough to fight misinformation leading up to the 2016 election.^[6] Since at least 2018, Facebook's battle against misinformation has also included the topic of public health, including removal of false information about the polio vaccine in Pakistan and a measles outbreak in Samoa.^[7]

But plaintiffs' claims are specific to content regarding the COVID-19 pandemic and the 2020 election cycle, when officials from the federal government, including the White House, Surgeon General, the Centers for Disease Control and Prevention ("CDC"), the Federal Bureau of Investigation ("FBI"), and the Cybersecurity and Infrastructure Security Agency ("CISA"), communicated frequently with Facebook, Twitter, and YouTube, among others, about their content moderation efforts — or lack thereof.^[8]

Beginning in 2021, the White House discussed the platforms' efforts to suppress vaccine misinformation, alleging that Facebook was "one of the top drivers of vaccine hesitancy."^[9]Those officials questioned Facebook, Twitter, and YouTube about their content moderation policies, voiced discontent with their failure to remove certain content, pushed the platforms to suppress certain content, and recommended content moderation policy changes.^[10]

In 2021, the Surgeon General went so far as to issue a health advisory that, among other things, encouraged social media platforms to rework their algorithms to combat misinformation.^[11] Similarly, the FBI and CISA, which were primarily concerned with election-related misinformation, met with platforms on several occasions, raising issues related to posts containing false or misleading information about voting and alerting them about foreign influence campaigns.^[12]

But the relationship between the platforms and the federal agencies was not solely push and pull. The Court also noted that platforms sought information from the CDC about information it could post about COVID-19, and asked the CDC to fact-check certain COVID-19 content.^[13]

The Claims

The crux of plaintiffs' claims is that the Federal Government — including the White House, CDC, Surgeon General, FBI, and CISA — infringed on their First Amendment Rights when, on the basis that the posted content was misinformation or misleading, the federal agencies pressured social media platforms like Facebook, Twitter, and YouTube censor their speech.^[14]

The Procedural Posture

In 2023, the District Court for the Western District of Louisiana issued a preliminary injunction, enjoining the White House, Surgeon General's Office, CDC, FBI, and CISA from acting "for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social media platforms."^[15]

The lower court's opinion was sweeping, and, significantly, made after extensive discovery, creating a factual record that was instrumental in ultimately shaping the majority's opinion.^[16]

On appeal, the Fifth Circuit affirmed in part, and the United States Supreme Court granted certiorari.^[17]

The...