Justices skeptical of broad limits on how the government speaks to platforms

During oral arguments on Monday, both liberal and conservative justices on the Supreme Court appeared wary of imposing broad limits on how the government can communicate with social media companies about problematic content it thinks should be removed.

The case at issue is called Murthy v. Missouri, and it asks the court to determine whether the Biden administration’s communications with platforms coerced the companies to take down content, like misinformation about covid vaccines, thereby violating the First Amendment. It also asks the court to consider whether the government’s encouragement to take down such posts actually transformed the platforms themselves into state actors.

But several justices seemed skeptical of the arguments from Louisiana Solicitor General Benjamin Aguiñaga, who argued on behalf of the states and individual plaintiffs who challenged the Biden administration on its communications with social media companies. The justices appeared to worry about the far-reaching consequences of limiting the ways the government is able to speak with tech platforms.

In the case originally filed in May 2022, the attorneys general for Louisiana and Missouri accused the Biden administration of coercing platforms to censor viewpoints they disagreed with. They had secured wins from the lower courts, which issued and upheld an injunction on the government’s communications with platforms, though the appeals court narrowed its scope. The justices must now determine whether that injunction was appropriate and where the line falls between persuasion and coercion.

Liberal Justice Ketanji Brown Jackson asked Aguiñaga a hypothetical that demonstrated concerns with how a ruling squarely in the states’ favor could play out. She imagined a social media challenge among teens that encouraged them to jump out of windows, leading to injuries and deaths. “Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” Jackson asked.

Aguiñaga said the government could use the bully pulpit to publicly encourage the platforms to do that. But he took issue with private communications instructing platforms on what they should do.

“I think they absolutely can say, ‘This is a problem, it’s going rampant on your platforms,’” Aguiñaga said. “But the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you’re interfering with the third-party speech rights.”

Later, Jackson said, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods … I’ve heard you say a couple times that the government can post its own speech, but in my hypothetical, ‘Kids, this is not safe, don’t do it,’ is not going to get it done.”

Chief Justice John Roberts, a conservative, followed up on Jackson’s hypothetical, asking whether encouraging platforms to take something down rises to the level of coercion. He added that Jackson’s example was not about eliminating a viewpoint but rather an instruction for a dangerous game.

“The moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem,” Aguiñaga said.

Conservative Justice Amy Coney Barrett asked Aguiñaga a different hypothetical, where he and other members of the Louisiana state government were doxxed and people were posting on social media that “people should rally, and you should be harmed.” She asked, assuming the speech did not cross the line of becoming illegal, whether it would be appropriate for the Federal Bureau of Investigation to encourage social media platforms to take down the messages.

After Aguiñaga began responding that he’s a “purist on the First Amendment,” Coney Barrett interrupted and said, “Do you know how often the FBI makes those kinds of calls?”

“The FBI absolutely can identify certain kinds of troubling situations like that for the platforms and let the platforms take action,” Aguiñaga said.

Some of the justices wondered if even testy exchanges between the government and platforms were all that dissimilar from how it might engage with the press. “I’d assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them,” conservative Justice Brett Kavanaugh said in an exchange with US Principal Deputy Solicitor General Brian Fletcher, who was arguing on behalf of the federal government.

Fletcher acknowledged that there have likely been instances of angry language or profanity in communications between the White House and the press.

Kavanaugh said it did seem strange to him that the government and platforms would seek to partner on issues like covid. Fletcher said that’s a function of the unusual circumstances in a scenario like the pandemic, where platforms chose to advance good information and reach out to the government, so in that case, “it’s an open door.”

“Like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech,” Kagan said, to laughter. “You just wrote a bad editorial — here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors — here are the 10 reasons why you shouldn’t do that again. I mean this happens literally thousands of times a day in the federal government.”

Some justices also didn’t seem convinced by the causal link the states sought to draw between the government’s messages to tech platforms and later moderation decisions. In one instance the states presented, the Biden administration contacted Facebook in May 2021, asking it not to distribute posts about vaccine hesitancy, and in July 2021, Facebook allegedly blocked health groups in Louisiana that one of the plaintiffs was involved in.

“A lot of things could happen in two months,” Kagan said.

Conservative Justice Neil Gorsuch also expressed frustration with what he called an “epidemic” of “universal injunction[s],” questioning the remedy offered by the lower court, which sought to block a large swath of communication. Aguiñaga responded that the breadth of the injunction reflects that “the breadth of the government’s enterprise in this case was extremely broad.”

The states received friendlier questioning from Alito and conservative Justice Clarence Thomas. Thomas asked if the states could make their case even without proving the coercion if they could show the government coordinated with the platforms. Aguiñaga said they could. Alito at one point tried to steer discussion of the states’ arguments back to a more pointed question about coercion.

“I thought your principle argument was that … coercion doesn’t apply only when the government says, ‘Do this, and if you don’t do this, there’s going to be legal consequences,’” Alito said, “but that it’s a more flexible standard, and you have to take into account the whole course of the relationship.”

The Associated Press says a decision should come by early summer.