Supreme Court wary of restricting government contact with social media platforms in free speech case
Washington — The Supreme Court on Monday appeared wary of limiting the Biden administration's contacts with social media platforms in a closely watched dispute that tests how much the government can pressure social media companies to remove content before crossing a constitutional line from persuasion into coercion.
The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election.
A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment's right to free speech by "coercing" or "significantly encouraging" social media sites' content-moderation decisions. The judge issued an injunction restricting the Biden administration's contacts with platforms on a variety of issues, though that order has been on hold.
During oral arguments on Monday, the justices seemed skeptical of a ruling that would broadly restrict the government's communications with social media platforms, raising concerns about hamstringing officials' ability to communicate with platforms about certain matters.
"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," Justice Ketanji Brown Jackson told Benjamin Aguiñaga, the Louisiana solicitor general. "I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying the government can't interact with the source of those problems."
Justice Amy Coney Barrett warned Aguiñaga that one of the proposed standards for determining when the government's actions cross the bound into unlawful speech suppression — namely when a federal agency merely encourages a platform to remove problematic posts — "would sweep in an awful lot." She questioned whether the FBI could reach out to a platform to encourage it to take down posts sharing his and other Louisiana officials' home addresses and calling on members of the public to rally.
Aguiñaga said the FBI could be encouraging a platform to suppress constitutionally protected speech.
The legal battle is one of five that the Supreme Court is considering this term that stand at the intersection of the First Amendment's free speech protections and social media. It was also the first of two that the justices heard Monday that involves alleged jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech.
The second case raises whether a New York financial regulator violated the National Rifle Association's free speech rights when she pressured banks and insurance companies in the state to sever ties with the gun rights group after the 2018 shooting in Parkland, Florida. Decisions from the Supreme Court in both cases are expected by the end of June.
The Biden administration's efforts to stop misinformation
The social media case stems from the Biden administration's efforts to pressure platforms, including Twitter, now known as X, YouTube and Facebook, to take down posts it believed spread falsehoods about the pandemic and the last presidential election.
Brought by five social media users and two states, Louisiana and Missouri, their challenge claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.
The challengers alleged that at the heart of their case is a "massive, sprawling federal 'Censorship Enterprise,'" through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.
U.S. District Judge Terry Doughty found that seven groups of Biden administration officials violated the First Amendment because they transformed the platforms' content-moderation decisions into state action by "coercing" or "significantly encouraging" their activities. He limited the types of communications agencies and their employees could have with the platforms, but included several carve-outs.
The U.S. Court of Appeals for the 5th Circuit then determined that certain White House officials and the FBI violated free speech rights when they coerced and significantly encouraged platforms to suppress content related to COVID-19 vaccines and the election. It narrowed the scope of Doughty's order but said federal employees could not "coerce or significantly encourage" a platform's content-moderation decisions.
The justices in October agreed to decide whether the Biden administration impermissibly worked to suppress speech on Facebook, YouTube and X. The high court temporarily paused the lower court's order limiting Biden administration officials' contact with social media companies.
In filings with the court, the Biden administration argued that the social media users and states lack legal standing to even bring the case, but said officials must be free "to inform, to persuade, and to criticize."
"This case should be about that fundamental distinction between persuasion and coercion," Brian Fletcher, principal deputy solicitor general, told the justices.
Fletcher argued that the states and social media users were attempting to use the courts to "audit all of the executive branch communications with and about social media platforms," and said administration officials public statements are "classic bully pulpit exhortations."
But Aguiñaga told the justices that the platforms faced "unrelenting pressure" from federal officials to suppress protected speech.
"The government has no right to persuade platforms to violate Americans' constitutional rights," he said. "And pressuring platforms in in backrooms shielded from public view is not using the bully pulpit at all. That's just being a bully."
The oral arguments
Several of the justices questioned whether the social media users who brought the suit demonstrated that they suffered a clear injury traceable to the government or could show that an injunction against the government would correct future injuries caused by the platforms' content moderation, which much be shown to bring a challenge in federal courts.
"I have such a problem with your brief," Justice Sonia Sotomayor told Aguiñaga. "You omit information that changes the context of some of your claims. You attribute things to people that it didn't happen to. ... I don't know what to make of all this because I'm not sure how we get to prove direct injury in any way."
Aguiñaga apologized and said he takes "full responsibility" for any aspects of their filings that were not forthcoming.
Justice Elena Kagan asked Aguiñaga to point to the piece of evidence that most clearly showed that the government was responsible for his clients having material taken down.
"We know that there's a lot of government encouragement around here," she said. "We also know that the platforms are actively content moderating, and they're doing that irrespective of what the government wants, so how do you decide that it's government action as opposed to platform action?"
The justices frequently raised communications between the federal government and the press, which often involve heated discussions.
Justice Samuel Alito referenced emails between federal officials and platforms, some of which he said showed "constant pestering" by White House employees and requests for meetings with the social media sites.
"I cannot imagine federal officials taking that approach to the print media, our representatives over there," he said, referencing the press section in the courtroom. "If you did that to them, what do you think the reaction would be?"
Alito speculated that the reason why the federal officials felt free to pressure the platforms was because it has Section 230, a key legal shield for social media companies, and possible antitrust action "in its pocket," which he called "big clubs available to it."
"It's treating Facebook and these other platforms like they're subordinates," Alito said. "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?"
Fletcher conceded that officials' anger is "unusual," but said it's not odd for there to be a back-and-forth between White House employees and the media.
Kavanaugh, though, said that he "assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them." He also noted that "platforms say no all the time to the government."
Chief Justice John Roberts — noting that he has "no experience coercing anybody" — said the government is "not monolithic, and that has to dilute the concept of coercion significantly." Roberts said one agency may be attempting to coerce a platform one way, while another may be pushing it to go the other direction.
The NRA's court fight
In the second case, the court considered whether the former superintendent of the New York State Department of Financial Services violated the NRA's free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.
Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd's of London, underwrote similar unlawful insurance products for the NRA.
Then, after the Parkland school shooting in February 2018, Vullo issued guidance letters that urged regulated entities "to continue evaluating and managing their risks, including reputational risks" that may arise from their dealings with the NRA or similar gun rights groups.
Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies it was investigating. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents.
The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of "informal censorship" that was designed to suppress its speech, in violation of the First Amendment.
A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo's actions "could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action."
But a federal appeals court disagreed and determined that the guidance letters and a press release couldn't "reasonably be construed as being unconstitutionally threatening or coercive," because they "were written in an even-handed, nonthreatening tone" and used words intended to persuade, not intimidate.
The NRA appealed the decision to the Supreme Court, which agreed to consider whether Vullo violated the group's free speech rights when she urged financial entities to sever their ties with it.
"Allowing unpopular speech to form the basis for adverse regulatory action under the guise of 'reputational risk,' as Vullo attempted here, would gut a core pillar of the First Amendment," the group, which is represented in part by the American Civil Liberties Union, told the court in a filing.
The NRA argued that Vullo "openly targeted the NRA for its political speech and used her extensive regulatory authority over a trillion-dollar industry to pressure the institutions she oversaw into blacklisting the organization."
"In the main, she succeeded," the organization wrote. "But in doing so, she violated the First Amendment principle that government regulators cannot abuse their authority to target disfavored speakers for punishment."
Vullo, though, told the court that the insurance products the NRA was offering its members were unlawful, and noted that the NRA itself signed a consent order with the department after Vullo left office after it found the group was marketing insurance producers without the proper license from the state.
"Accepting the NRA's arguments would set an exceptionally dangerous precedent," lawyers for the state wrote in a Supreme Court brief. "The NRA's arguments would encourage damages suits like this one and deter public officials from enforcing the law — even against entities like the NRA that committed serious violations."
The NRA, they claimed, is asking the Supreme Court to give it "favored status because it espouses a controversial view," and the group has never claimed that it was unable to exercise its free speech rights.
