The case involves a lawsuit initiated by two Republican-led states – Missouri and Louisiana – and individual social media users. They accuse the Biden administration of violating the First Amendment by operating a sprawling federal “censorship enterprise” to influence platforms to modify or take down posts.
Justices Elena Kagan and Brett M. Kavanaugh, who previously worked in Democratic and Republican administrations, respectively, suggested such exchanges were routine occurrences and did not amount to government censorship or coercion in violation of the constitutional right to free speech.
Chief Justice John G. Roberts Jr. seemed to agree, noting that the federal government has numerous agencies that do not always speak with a single voice.
“It’s not monolithic,” he said in an exchange with the attorney representing Louisiana. “That has to dilute the concept of coercion significantly. Doesn’t it?”
The case gives the Supreme Court an opportunity to shape how government officials interact with social media companies and communicate with the public online at a time when such platforms play an increasingly important role in elections and public debate. The justices are being asked to clarify when government attempts to combat misinformation cross the line from permissible persuasion to unconstitutional coercion.
The dispute is one of several before the justices this term testing Republican-backed claims that social media companies are working with Democratic allies to silence conservative voices online.
During oral argument Monday, the high court appeared ready to embrace a narrow ruling, with several justices suggesting that the states and individuals behind the lawsuit did not have sufficient legal grounds to sue the Biden administration. Several justices said the individuals could not show a direct link between the government’s pressure on the platforms and the tech companies’ removal of posts the government deemed problematic.
Kagan pressed Louisiana’s lawyer for evidence that the government — not the social media companies — was responsible for taking down the posts at issue.
“How is it government action as opposed to platform action?” Kagan asked.
The First Amendment prevents the government from censoring speech and punishing people for expressing different views. But the Biden administration says officials are entitled to share information, participate in public debate and urge action, especially when it comes to providing accurate public health and election information.
Principal Deputy Solicitor General Brian Fletcher said government officials have longstanding authority to use the bully pulpit to inform and persuade. The lower court ruling, he said, would prevent thousands of government officials, including FBI agents and presidential aides, from addressing threats to national security and public health.
The attorneys general of Missouri and Louisiana told the court that the federal government went too far by coercing social media companies to suppress and censor speech of individual users and by becoming deeply involved in the companies’ decisions to remove certain content.
Louisiana Solicitor General J. Benjamin Aguinaga said the Biden administration had subject the platforms to unrelenting pressure, using profanity and badgering — not the bully pulpit.
“That’s just being a bully,” he told the court.
The record before the Supreme Court includes a slew of email messages between Biden administration officials and social media companies, including Facebook’s parent company Meta and X, showing tense conversations in 2021 as the White House and public health officials campaigned for Americans to get the coronavirus vaccine.
The District Court judge in Louisiana who heard the lawsuit ruled against the Biden administration, saying it appeared to have operated “the most massive attack against free speech in United States’ history.” The court’s order barred thousands of federal employees from improperly influencing tech companies to remove certain content.
The U.S. Court of Appeals for the 5th Circuit narrowed the decision, however, saying the order applied to a smaller set of government officials and agencies, including the surgeon general’s office, the White House, the Centers for Disease Control and Prevention and the FBI.
A three-judge panel of the conservative appeals court said the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” The panel also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
In October, the Supreme Court intervened and allowed the Biden administration to resume communications with social media companies while the litigation continued. The court’s three most conservative justices dissented, calling the majority’s move “highly disturbing,” and saying that “government censorship of private speech is antithetical to our democratic form of government.”
Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, said allowing those communications to continue, could be seen as “giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”
Separate from the lawsuit House Republicans are investigating how tech companies handle requests from Biden administration officials — demanding thousands of documents from internet platforms. Conservatives activists have also filed lawsuits and records requests for private correspondence between tech companies and academic researchers studying election and health-related conspiracies.
The Supreme Court case is Murthy v. Missouri.
