The TikTok Bill and Today’s SCOTUS Case Are Funhouse Mirror Versions of Each Other

In 2022, the Biden administration was sued by two Attorneys General because it said the government had overstepped in opining on the moderation of social media platforms. A narrowed version of that case — after removing incidents from before the Biden administration existed — made its way to oral arguments before the Supreme Court of the United States today.

Mark Joseph Stern, Slate:

What happens when a lawless judge and a terrible appeals court embrace the dopiest First Amendment claim you’ve ever heard out of pure spite toward a Democratic president? That would be Murthy v. Missouri, a brain-meltingly dumb case that the Supreme Court was unfortunate enough to hear oral arguments in on Monday. Murthy poses a question so asinine that to ask it is to answer it: Can government officials encourage social media companies to moderate certain content that they deem harmful—most importantly, disinformation about COVID-19 in the middle of the pandemic?

Yes, of course they can […]

There is some kind of cosmic poetry at play landing this case in the spotlight less than a week after the U.S. House of Representatives overwhelmingly passed a bill which, if passed by the Senate and signed into law, would create the ability to force an application’s divestiture or ban it. The two circumstances look like funhouse mirror versions of each other. In the case of TikTok — the current target of the bill passed by the House — the problem lawmakers have is a “foreign adversary” seems to be leaning on the company — a situation the U.S. would like to rectify by giving it the power to lean on the company. In Murthy, a U.S. state is arguing the U.S. government should not be able to communicate with social media companies about policy at all because doing so is inherently coercive.

But the resolution of the two cases could be in seemingly opposing decisions. In Murthy, it seems likely the court will side with the Biden administration — see the analyses from Amy L. Howe and Mike Masnick. But in the TikTok bill, lawmakers are clamouring to give the government the power to suppress an app and its speech, and arguing that will be a tall order. I have been writing more about the latter as it seems it is suddenly locally relevant.