The Right to be Wrong: the Court’s Treatment of Government Disinformation Mitigation Efforts

By Allison McVey

Edited by Austin McNichols, Esme Merrill, and Jessica Sadowsky 

Modern First Amendment jurisprudence demonstrates the uncertainty with which the Supreme Court has long approached government regulations of free speech. National security, foreign conflict, and the political leaning of those in power are factors which have complicated free speech decisions throughout American constitutional history. Now, in the aftermath of the COVID-19 pandemic, the Court has examined whether executive officials can coordinate with social media companies to develop First Amendment-compliant content moderation strategies which suppress disinformation. In Murthy v. Missouri, conservative lower courts found that the Biden administration flagrantly infringed on the free speech rights of social media users by coordinating with platforms; the nation’s highest court, however, appears presently sympathetic to executive disinformation-regulating prerogative. This represents a break from recent Court decisions regarding Internet speech regulation, including Reno v. ACLU (1997).