The US Supreme Court decides not to rule on a case that is fundamental to freedom of expression. The issue is whether or not it is legitimate for an executive power to ‘suggest’ to a platform what content to censor instead of taking transparent steps subject to public scrutiny by Andrea Monti – Initially published in Italian by Wired.it
In the case of Murthy, Surgeon General, et al. v. Missouri, et al. decided on 26 June 2024, the US Supreme Court addressed the question of whether the US executive powers violated the First Amendment of the US Constitution by pressuring social media platforms to censor posts deemed to be sources of disinformation. The facts date back to the time of the pandemic when, to counter the wave of fake news, the large social networks selected and blocked content posted by users, with particular reference to content related to COVID-19 and the 2020 elections. Hence, the lawsuit brought by two states and five social network users who took the government to court, accusing it of forcing the platforms to unduly restrict their right to free speech.
The court, even if only by a majority, did not go into the merits of the case and avoided ruling on a particularly serious issue, entrenching itself behind preliminary aspects that concerned the non-existence of the parties’ right to sue the government. The majority of the judges, in fact, considered that to start a legal action, citizens would have had to prove that they were in real and present danger of not being able to express themselves freely due to the pressure exerted by the executive on the involved social networks. This proof, however, was not given and, on the contrary, the trial showed that the platforms often removed content independently and according to their own contractual terms without having to yield to government pressure. Moreover, the magistrates continue, there is no evidence that the intervention of government offices caused direct damage to the parties and, finally, even if the government’s actions initially influenced the platforms’ censorship choices, the latter continued to apply them independently. Therefore, even if the government was found liable, this would not automatically change the way platforms intervene to tame user-generated content.
In purely formal terms, this (non)decision is -probably- correct, however, it is also proof of how much the right to decide how a right is to be exercised increasingly resides, on the one hand, in the hands of private entities (Big Tech) and, on the other hand, in those of the executive power and no longer in those of the judiciary. The user finds himself caught in a vice from which he has no possibility of freeing himself: the procedures for reviewing takedowns by the platforms are essentially discretionary, while a ‘suggestion’ or an ‘unofficial request’ by a civil servant are not formal acts that have to be communicated to the person concerned and that can be challenged in court. Everything happens in limbo, where it is not possible to know ‘who’ ordered or did ‘what’ in the name of which principle or on behalf of which institutional body. Above all, it is not possible to know whether, and if so to what extent, all this was done by selecting the content to be indexed with more or less artificially stupid automated systems.
The situation is not very different in the European Union, where the regulation on digital services (improperly called the Digital Service Act) delegates to the big platforms wide powers of intervention on users and gives unspecified ‘trusted flaggers’ -trusted and private – the task of reporting the existence of illegal content, without a judge being involved in the process at all.
Now, it is true that, pragmatically, the amount of content circulating online is so enormous that no country can have such a large judicial authority to handle all the cases that arise. It is also true, again in the name of pragmatism, that some working solution has to be found. And it might be plausible that there is no alternative to the solutions practised in the US or adopted by the EU. But if all this is true, then we must also be aware of the price that we, as citizens, are paying in terms of giving up the protection that the state should guarantee us even and especially when we are on the ‘wrong side’, that of those who have broken the law, and who should be judged in an adversarial manner and with a lawyer.
As serious as it is, therefore, the restriction of freedom of expression is not the worst aspect of the affair that gave rise to the Supreme Court’s decision and prompted the EU to issue the regulation on digital services, because even before free speech, the entire system of rights and the strength of those who, the state, should protect them in the interest of all are compromised.