The Supreme Court appeared ready Monday to allow Biden administration officials to communicate with social media companies, as multiple justices sounded skeptical that the government violated free speech rights when it encouraged the removal of posts with misinformation.
The justices heard oral arguments over a ruling from the U.S. Court of Appeals for the 5th Circuit that, if allowed to go into effect, would sharply limit the government’s ability to communicate with internet giants like Meta, Google and X, the company formerly known as Twitter.
That lower court injunction, in a lawsuit brought by the states of Missouri and Louisiana along with a handful of social media users, would block government agencies from engaging in “coercion” or “significant encouragement” of social media platforms to censor views the government disfavored.
Justice Amy Coney Barrett was among several justices who questioned the unintended fallout of such an injunction would be on public safety and other issues.
“Just plain, vanilla encouragement or does it have to be some kind of significant encouragement? Because encouragement would sweep in an awful lot,” Barrett said.
Justice Brett M. Kavanaugh pointed out the injunction could sweep in government officials’ regular communications with members of the media, including warnings that publishing certain information could endanger national security.
Justice Ketanji Brown Jackson said she was concerned that the injunction would prevent the government from encouraging social media companies to remove posts that encouraged teenagers to jump out of windows.
At several points, the justices on the liberal wing of the court questioned whether the case should be in court at all, because the states and social media users who sued could not tie any action social media companies took against them to actions taken by administration officials.
J. Benjamin Aguiñaga, the Louisiana solicitor general defending the 5th Circuit decision, told the justices that government officials “badgered” social media companies for months in a broad campaign to remove posts raising concerns about coronavirus vaccines or the 2020 election.
Aguiñaga, who described himself as a “First Amendment purist” during oral arguments, said that any kind of encouragement for a platform to remove protected speech could be considered a free speech violation.
“Government has no right to persuade platforms to violate Americans’ constitutional rights,” Aguiñaga said.
The Supreme Court already paused the effect of the appeals court decision while they consider the case, and the justices are set to decide the case before the end of its term in June.
For the government, Brian H. Fletcher, principal deputy solicitor general, argued the lower court ruling would “radically expand” what’s considered censorship.
Fletcher said that allowing the ruling to go into effect could hurt efforts to combat antisemitism, terrorist recruiting and keeping child sexual abuse material off the internet.
“Government couldn’t function if it couldn’t express a point of view,” Fletcher said.
Justice Samuel A. Alito Jr., pressed Fletcher about the government’s leverage over social media companies because of “constant pestering” by the administration.
Alito pointed out that the government treated social media companies like “subordinates” in some of the communications and “has these big clubs available to it,” such as embracing reforms to the laws governing social media companies or opening an antitrust investigation.
Fletcher responded that the Biden administration communicated with social media companies in response to them holding themselves out as responsible partners in making sure people dealt with the coronavirus pandemic safely.
Fletcher also argued that the lower court conflated communications demanding answers about issues with the president’s or other government social media accounts with communications raising concerns about misinformation.
The case picked up on long-running concerns among Republicans over alleged censorship of conservative views online, particularly in the House.
Rep. Jim Jordan, R-Ohio, chairman of both the House Judiciary Committee and Subcommittee on Weaponization of the Federal Government, attended Monday’s oral arguments and has made concerns over government pressure of social media companies a major plank of committee probes.
Jordan submitted a brief in the case arguing that the Biden administration has put its thumb on the scale against conservative voices online. His subcommittee has held multiple hearings on the issue and also subpoenaed major internet companies such as Alphabet, Amazon, Apple, Meta, and Microsoft for information about their communications with government officials.
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