ARGUMENT ANALYSIS

Supreme Court skeptical of restricting government communications with social media companies

After nearly two hours of oral argument on Monday, a majority of the justices appeared sympathetic to the Biden administration’s argument that a federal court in New Orleans went too far in an order that would limit the government’s ability to communicate with social media companies about their content moderation policies.

The lawsuit before the court on Monday stems from efforts by the Biden administration in 2021 to encourage companies to restrict misinformation about the COVID-19 vaccine. But the challengers – two states with Republican attorneys general, Missouri and Louisiana, and several individuals whose social media posts were removed or downgraded – say that the government’s efforts violate social media users’ rights to free speech.

A federal judge in Louisiana agreed with the challengers that federal officials had violated the First Amendment by “coercing” or significantly encouraging” the content moderation decisions of social media platforms. U.S. District Judge Terry Doughty issued an order that limited communications between the White House and several other government agencies with social media platforms.

The U.S. Court of Appeals for the 5th Circuit largely upheld Doughty’s order, although it narrowed its application to a smaller group of officials, including the CDC, FBI, and the White House.

The Biden administration came to the Supreme Court, which agreed last fall to put Doughty’s order on hold and to weigh in on the merits of the case.

At the court on Monday, Deputy U.S. Solicitor General Brian Fletcher – representing the Biden administration – told the justices that the “easiest way to resolve this case” was to rule that the challengers do not have a legal right to sue, known as standing, because there is no imminent threat that social media platforms will moderate the posts of any of the challengers.

Both the justices and the lawyers focused primarily on one of the individual challengers, Jill Hines. Justice Samuel Alito observed that her Facebook account was restricted, and he suggested that such a restriction might provide the kind of injury needed for standing.

But other justices contended that any connection between government pressure on social media platforms and actual injuries to Hines – for example, the removal of her post republishing a post by Robert F. Kennedy, Jr. – was either unclear or too attenuated.

Justice Elena Kagan was one of the strongest proponents of this idea. She suggested that it might be difficult to distinguish between “government encouragement” and the work that the social media platforms would have done to moderate the content on their sites in any event, particularly when – as in Hines’ case – there was a gap in time between the government email encouraging social media platforms to take action and the moderation of Hines’ post.

Most of Monday’s argument, however, centered on the merits of the dispute – that is, whether the Biden administration’s contacts with social media platforms violated the challengers’ First Amendment rights. A majority of the justices appeared concerned that the challengers’ rule would sweep in too many government efforts to influence social media platforms, potentially prohibiting the government from acting to protect the public.

Fletcher described the government’s efforts to influence social media platforms in this case as a classic example of the “bully pulpit,” in which officials would “speak their mind and call on the public to act.” The court of appeals, he stressed, “mistook persuasion for coercion.” Efforts to persuade social media platforms cross the line only when they convey a threat of adverse government action, he insisted.

But Louisiana Solicitor General J. Benjamin Aguinaga countered that “the government’s levers of pressure are anathema to the First Amendment. Behind closed doors,” he told the justices, the government “badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned.”

Alito agreed with Aguinaga’s characterization of the emails exchanged between government officials and Facebook as “constant pestering.” He expressed skepticism that the government would follow a similar approach with the print media, but he suggested that the government had more leverage over social media platforms because, for example, it could bring antitrust claims against them.

Fletcher posited that, “in the context of trying to get Americans vaccinated during a once-in-a-lifetime pandemic,” the government might well use a similar tack with newspapers like the New York Times or Wall Street Journal. And while he acknowledged that the emails were “unusual,” Fletcher indicated that the idea that there would be a “back and forth” between government officials and social media platforms would not be unusual.

Justice Brett Kavanaugh and Kagan – both of whom worked in the executive branch before becoming judges – appeared to agree. Government PR people, said Kavanaugh, who served in the George W. Bush White House, “regularly call up the media and berate them.”

Kagan – who served in the Clinton administration – chimed in, telling Aguinaga that his argument appeared to be an “extremely expansive one.” Like Kavanaugh, she noted, “I have some experience with encouraging press to suppress their own speech.” “I mean,” she said, “this literally happens thousands of times a day in the federal government.”

In a lighter moment, Chief Justice John Roberts made clear that he “had no experience coercing anybody.” But he too expressed skepticism about the challengers’ theory, observing that the government is not “monolithic.” Efforts by one part of the government to pressure social media platforms, he posited, could lead the platforms to seek help from another part of the government. “And that has to dilute the concept of coercion significantly,” he suggested.

Justice Ketanji Brown Jackson outlined a hypothetical TikTok challenge involving teenagers jumping out of progressively higher windows, leading to serious injuries and even death. Could the government, she asked Aguinaga, “call the platforms and say: This information that you are putting up on your platform is creating a serious public health emergency, we are encouraging you to take it down?”

Aguinaga agreed that the government could call the platforms to flag the TikTok challenge as a problem, but he added that “the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you are interfering with the third party’s speech rights.”

Justice Amy Coney Barrett also appeared concerned about the broad implications of the challengers’ position. She asked Aguinaga about a scenario in which he and other Louisiana state government officials were doxed, followed by social media posts “about how people should rally and do something about this.” Could the FBI, she queried, “really encourage” social media platforms to take down the posts?

Aguinaga appeared to suggest that it could not. “If what the FBI is trying to do is trying to persuade a speech intermediary to take down a private third party’s speech,” he reiterated, that would be “an abridgement of speech.”

In an earlier response to a question from Barrett, Aguinaga described himself as a “First Amendment purist,” such that “even mild encouragement” from the government would be enough to create a First Amendment violation. But that line may prove to be too much for this court.

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.