The author is an associate researcher at the Raoul-Dandurand Chair, where his work focuses on the study and analysis of American politics.
When we think about the most important court cases of 2024, those involving Donald Trump naturally come to mind. Will the ex-president be found guilty before the November election? Will we have a first president officially recognized by the courts as a criminal?
These are heavy questions. The fact remains that they could in fact have less scope than a much less publicized case which the Supreme Court is examining this week.
In Murthy v. Missouri, the Court must determine what the government has the right to do — and what it cannot do — in the name of fighting disinformation on social media. Five social media users and two states — Missouri and Louisiana — complain that the removal of some of their posts on social platforms took place following pressure from federal government authorities.
Under the First Amendment to the U.S. Constitution guaranteeing the right to free speech, the state is explicitly prohibited from limiting free speech.
That a social network (a private company) chooses not to publish this or that comment is permitted; but for the government to force his hand to delete or control these same comments constitutes censorship. It is censorship that is prohibited.
The question before the Court is whether the Biden administration, in its first months in office, crossed the line into censorship by pressuring networks like Facebook and X (Twitter) to remove certain messages posted by their users on topics like the presidential election and the COVID–19 pandemic, messages that the administration claimed constituted disinformation.
This case is undoubtedly the most serious among those on which the highest court in the country will be called upon to rule between now and the end of its annual mandate in June. Because this decision will set the parameters of public debate in the United States — nothing less.
Between the fight against disinformation and censorship
One of the most regrettable aspects of the hyperpolarization of public debate, particularly on social networks, is the artificial opposition frequently created between two positions which are, in fact, not that far from each other.
On the one hand, misinformation is a real problem on social media. Some conspiracy theories spread like wildfire even though they are objectively false — for example, most recently this idea absurd that there is a vast conspiracy between the White House, Joe Biden’s re-election campaign, the NFL and singer Taylor Swift.
On the other hand, many of the ideas and messages originally deemed “misinformation” by government officials and often removed from social media in recent years were either legitimate political opinions or likely true information — e.g. , there possibility that the virus causing the pandemic was created in a laboratory and escaped by accident.
So what are the greatest risk and the greatest evil: allowing the dissemination of false information or suppressing real information?
In principle, the less freedom we give to the government to filter the content of social networks, the more the risk of disinformation will increase; and the more freedom we give him, the more the risk of depriving himself of certain information and valid opinions will increase.
The Evolution of Content Control
The history of “content moderation” on the Internet is as little known as it is fascinating. Just over a decade ago, a “free” Internet was viewed positively by the U.S. government.
In the context of the Arab Spring, in 2011, the Web and networks like Facebook were considered extraordinary and unique tools allowing citizens of authoritarian countries to mobilize against the regimes in place (regimes often opposed to the United States). ). Restricting speech on the Internet was synonymous with autocracy; not restricting it was associated with democracy.
Just a few years later, in the same region of the world (a cruel irony), the rise of the Islamic State group, which exploited the Internet for propaganda and recruitment, led to the start of US government pressure on social media. so that they increasingly control what is broadcast on their platforms.
Once national security was invoked to combat external threats such as ISIS, the next logical step was to use it as an argument to combat internal threats such as challenges to the American electoral system.
And, over the years, the links between the American national security apparatus and social networks became such that there were communication channels direct and secret between the FBI and Twitter’s senior management.
However, the question remains: where, exactly, is the line between authorized communications between the State and a social network and attempts at coercion falling into censorship? This is what the Court must establish.
The basic problem
If the issue seems so thorny, if such vagueness reigns, it is because social networks enjoy the advantages of traditional media (the freedom to exercise editorial discretion by filtering the content of their users) without having to bear the responsibility. legal (relating to laws against defamation or hate speech, for example).
During the presentation of the case before the Court on Monday, Judge Ketanji Brown Jackson, appointed by President Biden, posed a question interesting: what should the government do if social media users published messages daring children to throw themselves out of a building window?
However, if the question arises, it is precisely because of this preferential treatment that all administrations have reserved for the Web giants since their birth. Because if such comments were made in traditional media and children died by jumping into the void, these media would be sued. Social networks are de facto protected from any such prosecution by a law passed in 1996.
When the Internet emerged on a significant commercial basis in the 1990s, the US government took a dim view of the idea of regulating it too much, for fear of nipping a promising industry in the bud.
The problem will have been shoveled forward – and today seems impossible to resolve satisfactorily. The Supreme Court’s judgment will not resolve the substantive question, namely establishing once and for all whether the networks social media are platforms OR media. To do this, there would need to be political will to truly confront these giants. And this will does not currently exist.
