American Censorship: The Future of Social Media and Its Users

Blog Post | 112 KY. L. J. ONLINE | February 27, 2024

American Censorship: The Future of Social Media and Its Users

By: Abigail Vicars, Staff Editor, Vol. 112 

Social media has become a staple of American life – we wake up and almost immediately inform the rest of our day using social media. Whether it be posts from the news, our peers, strangers, or the government itself, we are constantly consuming information at the mercy of what social media companies have chosen to place in front of us. Approximately 4.9 billion people worldwide utilized social media in 2023, and the average user did so by using six to seven different social media platforms.[1] On average, users will spend nearly six years of their life perusing those platforms.[2] What happens, however, when social media is used to promote information contrary to the government’s goals and interests?        

During and in the years following the COVID-19 pandemic, social media users took to the internet to learn more about how to live in unprecedented times. Ninety percent of adults in the U.S. reported the internet as having been important or essential for them personally during the pandemic.[3] Following the 2020 presidential election, social media sites were ripe with accusations of voter fraud that have continued to taint political races across the nation.[4] In each of these instances, private individuals promoted views contrary to the federal government’s goals and intentions, and further painted the federal government in an unfavorable light.

To combat the dissemination of misinformation, federal officials have been in contact with many major American social media companies and encouraged them to remove content deemed to be misinformed and disfavored by the federal government since at least 2020.[5] Parties whose posts were affected by said companies (whether through the post’s removal or strategic downgrading on the part of the platform) took notice of the government’s interference and brought suit alleging the government “coerced, threatened, and pressured [the] social media platforms to censor [them].”[6] Following the Fifth Circuit’s decision in Missouri v. Biden, the United States Supreme Court has been given an opportunity to answer substantial  First Amendment questions concerning the government’s involvement in an arena still new to the world at large: social media.[7]

Your Social Media Rights

In an interview with The Harvard Gazette, Professor Martha Minow emphasizes the fallacy in many Americans’ argument when it comes to their social media speech: “I have First Amendment rights in this sphere.” As Professor Minow points out, it is only when the government engages with moderation on those sites that the First Amendment is “front and center.”[8]

Social media users do not have a legal right to say whatever they want on Facebook or X. Private actors, like Facebook or X, are not bound by the First Amendment.[9] Once a state actor engages in social media censorship, however, constitutional claims arise . Thus, when the Biden Administration and other defendants in Missouri v. Biden used intimidating language and other communication tactics to effectuate their desire to have specific information removed from social media,[10] the First Amendment took center stage.

Fifth Circuit’s Evaluation of Missouri v. Biden Claims

Using the close nexus test, the Fifth Circuit sought to determine whether a private party – in this case, the social media platforms – is “coerced or significantly encouraged by the government to such a degree that its ‘choice’–which if made by the government would be unconstitutional– ‘must in law be deemed to be that of the State.’”[11] To evaluate the presence of coercion, the Fifth Circuit followed the Second and Ninth Circuit’s lead in applying a four-factor test assessing the language and the context in which it is used: (1) word choice and tone in the context of what the Court describes as the “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, including whether fear of retaliation is reasonable; and (4) whether the speaker actually refers to adverse consequences.[12] The Fifth Circuit ultimately found many of the communications from the defendant parties met these criteria.[13]

Despite the government’s efforts to subvert misinformation via censorship, research has shown that censorship undermines free speech and actually encourages the public to look for information in less-than-reliable places.[14] Thus, encouraging more speech and increasing dissemination of accurate information is the most effective way to overcome misinformation in the public sphere.[15]

The Future of American Social Media Use

As case law continues to develop in this area,[16] the United States should keep a careful eye toward the First Amendment rights of not only social media companies, but the countless American citizens that utilize those platforms. Further, in a nation divided so deeply,[17] it is important that all voices be not only tolerated, but encouraged to create a more deeply informed society.

Missouri v. Biden, now Murthy v. Missouri, is on SCOTUS’s calendar for oral arguments to be heard on March 18 of this year.[18]

[1] Belle Wong, Top Social Media Statistics and Trends of 2024, Forbes Advisor (May 18, 2022, 2:09 PM), https://www.forbes.com/advisor/business/social-media-statistics/#key_social_media_statistics_section.

[2] Id.

[3] Colleen McClain, Emily A. Vogels, Andrew Perrin, Stella Sechopoulos & Lee Rainie, The Internet and the Pandemic, Pew Rsch. Ctr. (Sept. 1, 2021), https://www.pewresearch.org/internet/2021/09/01/the-internet-and-the-pandemic/.

[4] Michael Baldassaro, Katie Harbath & Michael Scholtens, The Big Lie and Big Tech: Misinformation Repeat Offenders and Social Media in the 2020 U.S. Election, The Carter Ctr., 49 (Aug. 2021), https://www.cartercenter.org/resources/pdfs/news/peace_publications/democracy/the-big-lie-and-big-tech.pdf.

[5] Missouri v. Biden, 83 F.4th 350, 359 (5th Cir. 2023).

[6] Id (internal quotations omitted).

[7] The United States Supreme Court stayed the injunction modified by the 5th Circuit and thus granted certiorarion October 20, 2023.The stay will remain in effect until the Supreme Court hands down its judgment in the case now titled Murthy v. Missouri. Murthy v. Missouri, 601 U.S. (2023) (No. 23A243 (23-411)) (unpublished), https://www.supremecourt.gov/opinions/23pdf/23a243_7l48.pdf.

[8] Christina Pazzanese, How the Government Can Support a Free Press and Cut Disinformation, The Harvard Gazette (Aug. 11, 2021) https://news.harvard.edu/gazette/story/2021/08/martha-minow-looks-at-ways-government-can-stop-disinformation/. 

[9] Id.; See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (“The Free Speech Clause does not prohibit private abridgement of speech.”).

[10] Biden, 83 F.4th at 381-87.

[11] Id at 373.

[12] Id at 378.

[13] Id at 380-91.

[14] How Governments Address COVID-19 Misinformation–For Better or For Worse, NYU (Feb. 1, 2021), https://www.nyu.edu/about/news-publications/news/2021/february/covid-19-misinformation.html.

[15] Id.

[16] See NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022); NetChoice, L.L.C. v. AG, Fla., 34 F.4th 1196 (11th Cir. 2022); Judicial Watch, Inc. v. Weber, No. 22-cv-06894-MEMF(JCx), 2023 U.S. Dist. LEXIS 91214 (C.D. Cal. May 22, 2023); O’Handley v. Weber, 62 F.4th 1145, 1153 (9th Cir.  2023); Hart v. Facebook Inc., No. 22-cv-737-CRB, 2023 U.S. Dist. LEXIS 81098 (N.D. Cal. May 9, 2023).

[17] See Michael Dimock and Richard Wike, America is Exceptional in the Nature of its Political Divide, Pew Research Center (Nov. 13, 2020) https://www.pewresearch.org/short-reads/2020/11/13/america-is-exceptional-in-the-nature-of-its-political-divide/.

[18] Murthy v. Missouri, SCOTUSblog, https://www.scotusblog.com/case-files/cases/murthy-v-missouri-3/ (last visited Feb. 20, 2024).