Challenge To Biden Hectoring Of Social Media Firms Appears Doomed At Supreme Court

A lawsuit aimed at stopping the Biden administration from urging social media companies to take down purported disinformation about Covid vaccines and election fraud got a decidedly chilly reception at the Supreme Court Monday.

A clear majority of the court sounded deeply skeptical about the suit brought by the states of Louisiana and Missouri and seven individual plaintiffs claiming Biden officials, including former Surgeon General Vivek Murthy, violated the First Amendment by pressuring social media platforms to suppress or delete posts — mainly from conservatives — that federal officials found objectionable.

Proponents of the case argued that a sustained and aggressive campaign by the administration amounted to unconstitutional coercion of firms like Facebook, Google and X, formerly known as Twitter, to remove or suppress posts expressing messages at odds with the views of federal authorities.

Justice Samuel Alito appeared to be in a small minority on the court who thought the barrage of emails from the White House and others to the social media companies may have met the legal standard for coercion.

Alito said it was completely unfathomable that officials would be so crude in dealings with the traditional press as they were in emails exchanged with the tech firms.

“I cannot imagine federal officials talking like that to the print media. If you did that to them, what do you think the reaction would be?” Alito asked as he gestured to the press corps seated along the side of the courtroom. “It is treating Facebook and these other platforms like they’re subordinates. Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?”

Alito’s comments quickly surfaced a divide on the court that seems critical to the outcome of the case. At least two of his colleagues suggested that he was wrong because officials across the government often badger journalists and editors about content the officials find objectionable or wrong.

“I had assumed, thought, experienced–government press people throughout the federal government who regularly call up the media and berate them,” Justice Brett Kavanaugh said, while acknowledging that some of the government messages to the platforms referring to them as partners were probably not common in dealings with traditional media.

“Like Justice Kavanaugh, I have had some experience encouraging press to suppress their own speech,” Kagan said as Kavanaugh and others in the courtroom chuckled. “This happens literally thousands of times a day in the federal government.”

“I have no experience coercing anybody,” Chief Justice John Roberts chimed in, also prompting laughter.

Louisiana state Solicitor General Benjamin Aguiñaga tried to pivot away from the mainstream press examples by saying that the speech the platforms were suppressing wasn’t their own but those of third parties. But several justices didn’t seem to find that distinction meaningful because news outlets often carry op-ed pieces and essays that don’t reflect the outlet’s view.

Aguiñaga also said the users often had no idea they were being impacted by the federal effort to prod the platforms to take down content.

“The bulk of it is behind closed doors. That is what is so pernicious about it,” he said.

Deputy Solicitor General Brian Fletcher defended the administration’s actions. “We don’t think it’s possible for the government — through speech alone — to transform private speakers into state actors,” he said.

Fletcher said the government didn’t engage in coercion — which he said would be unconstitutional — just encouragement and persuasion for the social media platforms to enforce their existing rules at the time barring Covid-19 misinformation.

“If it stays on the persuasion side of the line — and all we’re talking about is government speech — then there’s no state action and there’s also no First Amendment problem,” he said. “I think it’s clear this is exhortation, not threat.”

Fletcher called the injunction the 5th Circuit Court of Appeals approved barring most government communications with platforms “extremely vague” and warned that if the high court upheld it, officials at the FBI “would have to think very hard” about whether to keep interacting with the sites.

Another early indication of trouble for the red states and conservatives complaining of censorship came when Justice Amy Coney Barrett said she believed that the lower courts had made errors. She also expressed concern that the rationale behind the suit could prohibit government officials from reaching out to social media platforms about individuals being doxxed, or publishing someone’s personal information online with malicious intent.

Barrett also seemed uncomfortable with the lower courts’ conclusion that the Biden administration could be banned not only from “coercion,” but also from any action that “significantly encourages” platforms to take down protected speech.

“Encouragement would sweep in an awful lot,” Barrett said.

Roberts also expressed doubts that trying to control the federal government’s interactions with the media was feasible or effective. Federal agencies often disagree on policy issues he said, suggesting that the lawsuit implied the whole government was arrayed against the social media firms.

“The government is not monolithic either,” he said. “You can’t pick and choose which part of the government you are concerned about.”

While some of the justices seemed eager to air their views about the dangers of litigation trying to police government officials interactions with the traditional media and digital platforms, the arguments also raised the possibility that the injunction the plaintiffs won could be thrown out because they failed to show that whatever actions the platforms took against them were actually “traceable” to the pressure from federal officials.

“I don’t see a single item in your briefs that would satisfy any of our normal tests,” Kagan told Aguiñaga.

Justice Ketanji Brown Jackson pressed the Louisiana attorney about instances when the government could require speech to be suppressed if there was a compelling interest — raising a more expansive defense for the government taking action against certain speech. Notably, the other two liberal justices did not publicly follow her lead.

“Not every situation in which the government engages in conduct that ultimately has some effect on speech necessarily becomes a First Amendment violation,” Jackson said. She later went further to say some might argue the government “has a duty to take steps to protect the citizens of this country.”

Several justices appeared to poke holes in the legal arguments raised by Aguiñaga, leading him to issue multiple apologies to the justices for not being clear in his examples.

Barrett said she was left “very confused,” by Aguiñaga’s arguments. “It sounded like you were arguing a different legal standard depending on different factual circumstances.”

Justice Sonia Sotomayor said, “I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims, you attribute things to people who it didn’t happen to … I don’t know what to make of all of this.”

“I’m not sure we get to prove direct injury in any way,” she said.

Aguiñaga repeatedly referred to a legal standard that the “government can’t do indirectly what it’s prohibited from doing directly.” He conceded there are situations, including those dealing with national security, where the government would have a compelling interest to reach out and encourage platforms to take action.

By the end of the argument, Aguiñaga was backpedaling, telling the justices he’d be “completely fine” with a decision that only provided relief to the plaintiffs in the case or was limited to five major social media platforms.

The Supreme Court is expected to issue a decision in the case by late June.