#firstamendment

Missouri v. Biden: Tackling Health Misinformation on Social Media in a “Post-Covid” Era

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By: Anushka Parihar

Though we are arguably not in a “Post-Covid” era, with more than 32,800 new Covid-19 hospitalizations from January 7-13, 2023, public health measures have been greatly loosened following the official end to the federal Covid-19 public health emergency in May 2023. Unfortunately, even as Americans have stopped wearing masks and social distancing, the prevalence of online health misinformation continues to rise. 

Health misinformation is defined as false, inaccurate, or misleading medical information according to the best available evidence at the time. Due to the unparalleled access to misinformation on social media platforms like Meta, X, and YouTube, Americans encounter misleading information about a variety of health topics such as vaccines, reproductive health, and smoking products and drugs. 

This poses a serious threat to public safety by undermining public health guidelines and the work of medical professionals. Social media companies have attempted to alter their content moderation policies in the past, only to be hit with lawsuits aimed at limiting their ability to moderate false posts. 

The necessity of a legal solution is clear. Currently, no laws or precedent provide a cause of action against online media for promoting health misinformation on their platforms. This is largely because any regulation centered around health misinformation has to overcome a significant barrier: the First Amendment.

S.2448: The Failed Solution

In 2021, Senator Amy Klobuchar (D-Mn) introduced S.2448, the Health Misinformation Act. The bill attempted to hold social media companies accountable for promoting health misinformation during a public health emergency by limiting the liability protection afforded to those companies under Section 230 of the Communications Decency Act. Under the bill, Section 230 protection would not apply to companies that utilize an algorithm to push content with health misinformation to users.

This bill died in the 2021-2023 session with many raising potential First Amendment issues relating to government censorship of free speech.

SCOTUS to Take a Stand

In a move that is sure to provide some insight on how far the government can go to combat health misinformation on social media, the Supreme Court (SCOTUS) has agreed to hear arguments in Missouri v. Biden. Originally filed by Missouri’s Attorney General Eric Schmitt in 2020, this suit alleges that the Biden administration worked with large social media companies such as Meta, Twitter (now X), and YouTube to “censor and suppress free speech” related to Covid-19 and other topics such as election information. President Biden’s lawyers reject this allegation, arguing that they requested but never forced these companies to stop the spread of posts that questioned the safety and efficacy of the Covid-19 vaccine and government shutdown measures.

US District Judge Doughty issued a preliminary injunction against Biden officials in July 2023, preventing them from contacting social media services for the purpose of “urging, encouraging, pressuring, or in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” In September 2023, the Fifth Circuit Court of Appeals upheld the district court injunction. 

SCOTUS is set to hear arguments in March 2024 and has lifted the injunctions set by the lower courts in the meantime. While the ruling in Missouri v. Biden will pertain to multiple topics that Missouri claims were censored by the US government, it will also provide insight into how online health misinformation is to be dealt with going forward. SCOTUS is set to hear numerous cases involving First Amendment protections on social media this year, so it is likely that the court may actually state a test or criteria for determining if and when the government is allowed to ask social media companies to censor their content. 

Perhaps if the only issue at stake was regarding health misinformation, SCOTUS might determine that government intervention is key in keeping the public safe. However, given the fact that this lawsuit couples health misinformation with election materials and other information that spreads quickly on social media, it seems unlikely that SCOTUS will rule in favor of the Biden administration. Justices Alito, Thomas, and Gorsuch have already dissented to the lifting of the injunctions, saying that it gives the government a “green light” to influence the dissemination of news by asking social media platforms to alter how users’ posts are viewed. 

The issue seemingly boils down to what will be more important: combating false and misleading information about key issues or preserving the constitutional right to freedom of speech. It is important to note that the First Amendment is not an absolute right, and the Court has established certain limits on protected speech. Though government censorship of free speech feels inherently antithetical to democracy, there are certain forms of speech that are not afforded Constitutional protections. Incitement, defamation, fraud, obscenity, and child pornography are all exceptions to the First Amendment. All of these exceptions have one thing in common: the potential for harm. 
The potential for harm caused by the spread of health misinformation is broad. Covid misinformation resulted in a number of preventable deaths, so future instances of health misinformation should be considered legitimate threats to public health. If SCOTUS is able to provide us with a way to combat this issue by allowing government officials to request that social media platforms attempt to curb the spread of misinformed content, it could help shape public health and safety in a meaningful way.

Are rap lyrics protected as free speech or could they send you to prison?

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Photo by Mark Angelo Sampan on Pexels.com

By: Aminat Sanusi

Over the past couple of decades, rap music has become part of mainstream culture and cultivated a billion-dollar industry. That means that more eyes are on every move the artists make and sometimes those artists get into trouble with the law. However, in recent years prosecutors have tried to use the artists’ lyrics as evidence during their trials to prosecute them for crimes charged against them. There has been much outcry and concern about using artists’ lyrics against them in a court of law because of First Amendment rights and how it disproportionately affects Black, Indigenous, and people of color (BIPOC). The Supreme Court has yet to rule on whether rap lyrics are protected speech under the First Amendment, so prosecutors in many states continue to use them as damming evidence in criminal trials.

How has the history of the First Amendment intertwined with artistic expression?

In a 1992 Supreme Court decision, Dawson v. Delaware, the court held that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. This case set a heightened evidentiary standard when it came to different forms of protected speech. This heightened evidentiary standard is disproportionately applied when it comes to rap music even though country music also uses vulgar language and speaks of violent and graphic imagery. Rap and hip-hop music in criminal trials has been treated as inherently criminating. The prosecutors in these criminal cases sometimes use rap videos in addition to the lyrics to try and convince juries that those artists more than likely committed the crime since they portrayed gang-related activities in their videos.

The majority of artists in the rap and hip-hop music industries are members of the BIPOC community and when they are facing criminal charges the prosecutors often use their rap lyrics as evidence that they committed the crimes. Rap lyrics are known to have vulgar language, and mention drug and alcohol use, gang-related activities, and different types of criminal activity. However, musical lyrics are considered artistic expression and are protected under the First Amendment. The First Amendment to the Constitution grants a person the right to free speech, press, and freedom to exercise the religion of their choice. The argument against the use of rap lyrics to incriminate hip-hop and rap artists is the fact that lyrics are free speech which is constitutionally protected.

Should artists be fearful of expressing their experiences in their music because it could be used against them in a court of law?

 In 2022, Grammy-award-winning hip-hop artist Jeffery Lamar Williams, famously known as, “Young Thug”, was charged with conspiracy and street gang activity under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. Mr. Williams is an African American male who raps about his life experiences including lyrics covering gang activity, drug and alcohol use, and living in poverty. The main piece of evidence used in Mr. Williams’ case was his rap lyrics. Many well known artists and celebrities have condemned this practice. They believe that prosecutors should not use Mr. Williams’ lyrics as evidence against him because, in addition to his music being protected speech under the First Amendment,  the lyrics have no relevance to the crimes he’s being prosecuted for. The prosecutor in Mr. Williams’ case claimed that the lyrics are not protected speech because they had relevance to the crimes he was facing. Mr. Williams’ trial has just commenced but it is not clear yet whether the use of his rap lyrics will be admissible or limited in his case.

Another unfortunate case of rap lyrics used as evidence was former rapper McKinley “Mac” Phipps Jr., who was convicted of manslaughter in 2001 after prosecutors recited his rap lyrics in court. He served twenty-one years in prison out of a thirty-year sentence and was released in 2021. In Mac’s case, he was arrested when rap and hip-hop first began to play a huge role in mainstream culture but at the time people did not pay much attention to the use of the artist’s music against them in court proceedings in a prejudicial manner.

What does the future hold?

In the summer of 2022, the Governor of California, Gavin Newsom, passed the Decriminalizing Artistic Expression Act into law, which limits the use of rap lyrics as evidence in criminal trials. This Act does not completely exclude the use of the lyrics against artists in court proceedings, however, it does provide that the lyrics need to have relevant substantive value to prove the crimes of the case and not be unduly prejudicial. This Act encompasses visual art, performance art, poetry literature, film, and other media. If the prosecutors in California wish to use the rap lyrics as evidence, they would have to show that the lyrics were written around the time of the crime and that the lyrics have some specific similarity to the crime itself. This new law in California will have an immense effect on the way prosecutors prosecute many of the rap and hip-hop artists accused of criminal activity and how rap lyrics or music videos may be used as an admission of guilt.

Additionally, this past year the New York legislature introduced a bill similar to the law passed in California that would limit the admissibility of a defendant’s artistic expression against such a defendant in a criminal proceeding. The bill is called the Rap Music on Trial Bill. This bill would not completely ban the use of rap lyrics in a criminal proceeding but would ensure that the lyrics used were to show literal and not just figurative or fictional meaning. The Bill has been voted on and passed in the New York State Senate but still awaits a vote in the New York State Assembly. The United States House of Representatives has recently introduced legislation called the Restoring Artistic Protection (RAP) Act which would limit the admissibility of lyrics as evidence in criminal cases. Co-sponsors of this bill, such as Representative Jamaal Bowman from New York has stated he supports this bill because of how it will prevent talented artists from being imprisoned for expressing their experiences. Additionally, it would provide comfort to artists who are afraid of expressing their creativity because they do not want their art used against them in a criminal case. The RAP Act currently has ten co-sponsors and has yet to be taken out of committee and brought to the floor for a vote. Hopefully, with all of these various changes in legislation, in the future rappers and singers will not be charged with crimes simply because of their artistic expression in lyrics and videos.