During oral arguments in a major First Amendment case on Monday, the Supreme Court expressed reservations about restricting interactions between the Biden administration and social media platforms. This concern emerged during the Murthy v. Missouri (formerly Missouri v. Biden) case, which delves into the extent of governmental influence over online content.
Brian Fletcher, Principal Deputy Solicitor General of the United States, presented oral arguments for the petitioners in the case, Biden’s Surgeon General Vivek H. Murthy and several other current and former members of the Biden administration.
The respondents in the case, the States of Missouri and Louisiana, and several other individuals who were subject to social media censorship, allege that the federal government had pressured platforms to block or downgrade posts on various topics, including some related to Covid and the Hunter Biden laptop story.
Several lower courts agreed with the respondents, with a district judge describing the Biden administration’s Big Tech-censorship collusion as “Orwellian” and the Fifth Circuit Court of Appeals finding that the Biden admin likely violated the First Amendment when pushing for social media censorship.
During the oral arguments today though, the justices displayed skepticism towards a broad prohibition on governmental communications with social media platforms. They raised concerns that such a ruling could unduly restrain the government’s ability to address pressing issues.
Fletcher defended the Biden admin’s actions and framed them as the government exercising its right to “speak for itself by informing, persuading, or criticizing private speakers.” He argued that the government is entitled to communicate with social media companies to influence their content moderation decisions, as long as these interactions do not veer into coercion. According to Fletcher, the litmus test for legality should be the presence or absence of threats from the government, asserting that using the bully pulpit for exhortations is a right protected under the First Amendment.
Fletcher also tried to argue for the significant power and autonomy of social media companies, noting their capability to resist governmental pressures.
The solicitor general of Louisiana, Benjamin Aguiñaga, representing one of the Republican-led states behind the lawsuit, argued that the government’s actions amounted to coercion, effectively leading to censorship by social media platforms. He highlighted a significant shift in the focus of government-led content moderation. Initially aimed at tackling foreign interference and misinformation, these efforts increasingly targeted speech by American citizens, particularly around the contentious topics of the 2020 election and the pandemic.
Justice Ketanji Brown Jackson challenged Louisiana Solicitor General Benjamin Aguiñaga’s viewpoint. “And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country. And you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So, can you help me? Because I’m really worried about that.”
Justice Amy Coney Barrett also voiced concerns, questioning whether the FBI could legally request social media platforms to remove content, such as posts revealing personal information about officials.
Aguiñaga’s argument was that such actions could potentially suppress constitutionally protected speech.
The oral arguments went off into the weeds and into the nuances of what constitutes “coercion” by the government in its interactions with social media platforms, rather than directly addressing the core text of the First Amendment. This focus on “coercion” rather than the First Amendment’s explicit wording – prohibiting the “abridging” of the freedom of speech, or of the press – played into the Biden administration’s hands.
Justices Kavanaugh and Kagan drew a comparison between the case and the interactions that often occur between administration officials and news media. They proposed that efforts by officials to shape media coverage should be seen as constructive dialogue, not necessarily an attempt at censorship, and suggested such actions don’t violate the First Amendment’s provisions.
Kagan challenged the lawyer from Louisiana to demonstrate that the removal of the contentious posts was the result of government intervention rather than actions taken by the social media companies themselves.
“What distinguishes this as an act of the government rather than a decision made by the platforms?” Kagan inquired.
The discussion among the justices also ventured into the standing of the plaintiffs – Missouri and Louisiana, accompanied by five individuals – to bring the lawsuit. They questioned whether these parties had experienced a direct injury that would justify their legal challenge. Furthermore, the justices expressed doubts about the appropriateness of a wide-ranging injunction that would bar various officials from contacting social media platforms as a remedy to the alleged issue.
Justice Sonia Sotomayor specifically addressed concerns regarding the approach taken by the plaintiffs in presenting their case. Directing her comments to Aguiñaga, Justice Sotomayor criticized the framing of their argument. She pointed out that the plaintiff’s brief seemed to leave out crucial information, thereby altering the context of certain claims, a point which she found particularly troubling.
Chief Justice John G. Roberts Jr. appeared to concur with the notion that the federal government’s diverse array of agencies, which often lack a unified stance, weakens the argument of coercion. During a dialogue with the attorney from Louisiana, he observed, “It’s not monolithic.” He then posed a question that implied this multiplicity of voices in the federal government could substantially diminish the idea of coercion: “That has to dilute the concept of coercion significantly. Doesn’t it?”
While the justices mostly appeared skeptical of prohibiting the federal government from pressuring social media platforms to censor speech, there were some moments where they questioned the Biden admin’s arguments.
Justice Sotomayor pressed Fletcher to give her specifics on how the injunction that prohibits officials from coercing or significantly encouraging a platform’s content-moderation decisions would harm the government.
Fletcher responded by claiming that the injunction would prevent the Federal Bureau of Investigation (FBI) from flagging foreign “disinformation” to platforms, prevent White House officials from criticizing the platform’s practices on “misinformation,” and prevent officials complaining about or flagging various other types of legal content on social media.
Justice Samuel Alito also noted that two lower courts have found or accepted that some examples of Big Tech censorship that were highlighted in this case were “traceable to the government’s actions.”
He added: “We don’t usually reverse findings of fact that had been endorsed by two lower courts.”
Additionally, Justice Alito expressed skepticism about the White House and other federal officials constant “pestering” of Facebook and other social media platforms.
“And I thought, wow, I cannot imagine federal officials taking that approach to the print media,” Justice Alito said. “I thought, you know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket, and it’s…to mix my metaphors, and it’s got these big clubs available to it. And so it’s treating Facebook and these other platforms like their subordinates.”
After the hearing, the New Civil Liberties Alliance (NCLA), one of the legal groups representing the respondents in this case, urged the justices to recognize that the Biden admin’s censorship pressure violated the First Amendment.
“Our clients, who include top doctors and scientists, were censored for social media posts that turned out to be factually accurate, depriving the public of valuable perspectives during a public health crisis,” Jenin Younes, Litigation Counsel at the NCLA said. “We’re optimistic that the majority will look at the record and recognize that this was a sprawling government censorship enterprise without precedent in this country, and that this cannot be permitted to continue if the First Amendment is to survive.”
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