In March, the U.S. Supreme Court will determine the extent of permissible federal interactions with private-party decision-making – namely, by social media platforms. The issue is portrayed as a clash between First Amendment rights and public health. This is not a new conundrum, but the involvement of social media is upping the ante. Further complicating the issue is the fact that the platforms acquiesced and voluntarily cooperated with governmental involvement, and while they are the object of the federal “incursions,” the social media platforms are not the aggrieved parties in the case.
Coercion vs. Persuasion
With rare exceptions, the right to free speech is exceptionally broad. Exceptions focus on imminent and irremediable harm, like shouting fire in a crowded theater or child pornography. You are even allowed to lie – as long as no one’s reputation is injured. But what if the feds want to constrain those attacking government actions because those attacks are dangerous and endanger public health? The Fifth Circuit said no go. The Supreme Court weighs in this March.