A majority of Supreme Court justices during oral arguments Monday did not appear ready to find that the Biden administration violated the First Amendment by encouraging social media platforms to censor speech.
A district court judge issued an initial injunction in July 2023 blocking a range of officials in agencies from the Department of Health and Human Services (HHS) to the FBI from communicating with social media platforms for the purposes of censoring speech, calling the government conduct exposed by the plaintiffs arguably “the most massive attack against free speech in United States’ history.” Not every justice seemed convinced by that assessment during oral arguments to consider the Biden administration’s appeal in the case, Murthy v. Missouri.
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Justice Ketanji Brown Jackson told Louisiana Solicitor General Benjamin Aguinaga. “Some might say that the government actually has a duty to take steps to protect the citizens of this country.”‘
Documents obtained during litigation by the plaintiffs — the states of Louisiana and Missouri, along with five individuals whose speech was censored — revealed regular meetings between federal agencies and platforms to address misinformation, as well as email exchanges showing the White House asked platforms to take content down “ASAP” and remove accounts.
After the district court’s ruling last July, the Fifth Circuit narrowed the injunction to block a smaller set of agencies from “coercing or significantly encouraging” the suppression or removal of speech. The justices considered whether this was the right line to draw: when does persuasion end and coercion begin?
Oral argument before #SCOTUS in Murthy v. Missouri starts soon.
Our client @AaronKheriatyMD has prepared a list of the censored doctors and scientists: @DrJBhattacharya, @MartinKulldorff, @TracyBethHoeg, @AzadehKhatibi.
We will stop the Censorship Industrial Complex together. pic.twitter.com/bbfWL5Cmxc
— New Civil Liberties Alliance (@NCLAlegal) March 18, 2024
Justice Samuel Alito seemed most troubled by the record, saying he “cannot imagine” the government taking the same approach with the print media and treating them like “subordinates.”
“Would you do that to the New York Times or the Wall Street Journal or the Associated Press?” he asked Principal Deputy Solicitor General Brian Fletcher. “Constant meetings, constant emails, we want answers, we’re partners, we’re on the same team — do you think the print media regards themselves as being on the same team as the federal government?”
“Potentially, in the context of the efforts to get Americans vaccinated during a once in a lifetime pandemic,” Fletcher said. “I really think that piece of context, it doesn’t change the First Amendment principles, but it’s relevant to how they apply here.”
Justice Brett Kavanaugh likewise wondered whether press officials regularly “berate” the media, pointing to the “anger” evident in some of the government’s communications.
KBJ doubles down: “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.”
That is, quite literally, the entire point of the First Amendment—of the entire Bill of Rights. pic.twitter.com/gWMCaHDG1W
— System Update (@SystemUpdate_) March 18, 2024
However, Justices Sonia Sotomayor and Elena Kagan, along with Jackson, worried about limiting the government’s ability to persuade companies to take action when needed, such as when a platform is spreading terrorist speech. They also questioned whether the plaintiffs had standing and could prove their posts were censored as a direct result of the government.
“It seems like an extremely expansive argument,” Kagan said. “I’ve had some experience encouraging the press to suppress their own speech. 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 ten reasons why you shouldn’t do that again. This happens literally thousands of times a day in the federal government.”
The difference, Aguinaga pointed out, is that when the White House sends an email to Facebook, the individual who made the original post never sees that communication.
Jackson posed the hypothetical of a social media trend where teens were jumping out of windows: would the government be able to ask for that content to be removed?
Aguinaga also faced critical questions from Chief Justice John Roberts and Justice Amy Coney Barrett. Roberts noted the government is not “monolithic,” that different agencies may advise different actions.
Barrett expressed concern that the “encouragement” standard would sweep in a lot of activities. If the Louisiana government was doxxed, would the FBI be allowed to call social media companies and express concern?
“The government is not helpless,” Aguinaga said, noting the solution to countering false speech is to encourage more true speech. “It has tools at its disposal and censorship has never been the default remedy.”
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