During oral arguments on Monday, both the court’s liberal and conservative justices appeared wary of imposing broad restrictions on how the government can communicate with social media companies about problematic content they believe should be removed.
The case involved is called Murthy v. Missouri, and asked the court to determine whether the Biden administration’s communications with platforms violated the First Amendment by forcing the companies to remove content, such as misinformation about the coronavirus vaccine. It also asked the court to consider whether government encouragement to remove such posts actually turns the platforms themselves into state actors.
But several justices appeared skeptical of the arguments of Louisiana Deputy Attorney General Benjamin Aguiniaga, who represents states and individual plaintiffs challenging the Biden administration’s communications with social media companies. The justices seemed worried about the far-reaching consequences of limiting the way governments talk to tech platforms.
In the case, originally filed in May 2022, the attorneys general of Louisiana and Missouri accused the Biden administration of forcing platforms to censor views they disagree with. They won a victory from lower courts, which issued and upheld an injunction on government communications with the platforms, although an appeals court narrowed its scope. The judge must now determine whether the injunction is appropriate and where to draw the line between persuasion and coercion.
Liberal Justice Ketanji Brown Jackson posed a hypothesis to Aguiniaga that raised concerns about how a ruling that was entirely in favor of the states would play out. She imagined teenagers facing social media challenges that encouraged them to jump out of windows, leading to injuries and deaths. “Do you believe that government authorities cannot declare these situations a public emergency and encourage social media platforms to remove information that raises this issue?” Jackson asked.
Aguiniaga said the government could use the pulpit to publicly encourage platforms to do so. But he took issue with private communications instructing platforms on what they should do.
“I think they can absolutely say, ‘This is a problem and it’s rampant on your platform,'” Aguiniaga said. “But when the government tries to use its ability as a government and its position as a government to pressure them to step down, that is interfering with the speech rights of third parties.”
Later, Jackson said: “My greatest concern is that your view allows the First Amendment to constrain government in significant ways when it matters most…I’ve heard you say several times that the government can make its own speech, but in My assumption of, ‘Kids, this is not safe, don’t do this’ is not going to work.”
“My greatest concern is that your views allow the First Amendment to severely limit government when it matters most.”
Conservative Chief Justice John Roberts followed up on Jackson’s presumption, asking whether encouraging platforms to remove certain content would rise to the level of coercion. He added that Jackson’s example was not meant to dispel perspective, but rather as a guide to a dangerous game.
“Once the government identifies an entire category of content that it doesn’t want in the modern public sphere, that’s a First Amendment issue,” Aguiniaga said.
Conservative Judge Amy Coney Barrett presented Aguiniaga with a different hypothesis, one in which he and other members of Louisiana’s government were being doxxed, with people posting on social media that “people should assemble , and you deserve to be harmed”. She asked whether it would be appropriate for the FBI to encourage social media platforms to remove the information, assuming the remarks did not cross the line of illegality.
After Aguiniaga began to respond that he was a “First Amendment purist,” Coney Barrett interrupted: “Do you know how often the FBI makes these calls?”
“The FBI can definitely identify some of the troubling situations a platform encounters and get the platform to take action,” Aguiniaga said.
Some judges wondered whether even heated exchanges between governments and platforms were significantly different from how governments interact with the media. Conservative Justice Brett Kavanaugh said in an exchange with U.S. Chief Deputy Attorney General Brian Fletcher: “I thought there were experienced government press personnel throughout the federal government. , they often call the media and berate them.” The federal government.
Fletcher acknowledged that there can be instances of angry language or profanity in communications between the White House and the media.
Kavanaugh said it was “really strange” to him that governments and platforms would seek to collaborate on issues like the coronavirus. Fletcher said this was a result of unusual circumstances in situations such as the pandemic, where platforms choose to provide good information and engage with governments, so in this case “it’s an open door”.
“Like Judge Kavanaugh, I have had the experience of encouraging the media to suppress their own speech,” Kagan said with a laugh. “You just wrote a bad editorial—here are five reasons why you should never write another one. You just wrote a story filled with factual errors—here are 10 reasons why you shouldn’t do it again Reason. I mean, this happens thousands of times every day in the federal government.”
Some judges also seemed unconvinced by states’ attempts to establish a causal link between government messaging to tech platforms and subsequent review decisions. In one case brought by the states, the Biden administration contacted Facebook in May 2021 to ask it not to post about vaccine hesitancy, and in July 2021, Facebook allegedly blocked a Louisiana video in which one of the plaintiffs was involved. That state health group.
“A lot can happen in two months,” Kagan said.
Conservative Justice Neil Gorsuch also expressed frustration with what he called an “epidemic” of “universal injunctions”[s],” challenged the remedy provided by a lower court that sought to block a slew of communications. Aguiniaga responded that the scope of the injunction reflected “the extremely broad scope of the government’s actions in this case.”
The states received friendlier inquiries from Alito and conservative Justice Clarence Thomas. Thomas asked whether states can prove government coordination with these platforms even without proving coercion. Aguiniaga said they could. At one point, Alito sought to steer discussion of the state debate back to more pointed questions about coercion.
“I think your main argument is … that coercion only applies if the government says, ‘Do this, and if you don’t, there will be legal consequences,'” Alito said, “but that’s A more flexible standard where you have to take into account the entire course of the relationship.”
Associated Press Said a decision should be made by early summer.