This covers both checks and balances and the free speech and/or press.
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After nearly two hours of oral argument on Monday, a majority of the justices appeared sympathetic to the Biden administration’s argument that a federal court in New Orleans went too far in an order that would limit the government’s ability to communicate with social media companies about their content moderation policies.
A federal judge in Louisiana agreed with the challengers that federal officials had violated the First Amendment by “coercing” or significantly encouraging” the content moderation decisions of social media platforms. U.S. District Judge Terry Doughty issued an order that limited communications between the White House and several other government agencies with social media platforms.
The U.S. Court of Appeals for the 5th Circuit largely upheld Doughty’s order, although it narrowed its application to a smaller group of officials, including the CDC, FBI, and the White House.
The Biden administration came to the Supreme Court, which agreed last fall to put Doughty’s order on hold and to weigh in on the merits of the case.
. . . Most of Monday’s argument, however, centered on the merits of the dispute – that is, whether the Biden administration’s contacts with social media platforms violated the challengers’ First Amendment rights. A majority of the justices appeared concerned that the challengers’ rule would sweep in too many government efforts to influence social media platforms, potentially prohibiting the government from acting to protect the public.
Fletcher described the government’s efforts to influence social media platforms in this case as a classic example of the “bully pulpit,” in which officials would “speak their mind and call on the public to act.” The court of appeals, he stressed, “mistook persuasion for coercion.” Efforts to persuade social media platforms cross the line only when they convey a threat of adverse government action, he insisted.
But Louisiana Solicitor General J. Benjamin Aguinaga countered that “the government’s levers of pressure are anathema to the First Amendment. Behind closed doors,” he told the justices, the government “badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned.”
. . . Justice Ketanji Brown Jackson outlined a hypothetical TikTok challenge involving teenagers jumping out of progressively higher windows, leading to serious injuries and even death. Could the government, she asked Aguinaga, “call the platforms and say: This information that you are putting up on your platform is creating a serious public health emergency, we are encouraging you to take it down?”
Aguinaga agreed that the government could call the platforms to flag the TikTok challenge as a problem, but he added that “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 are interfering with the third party’s speech rights.”
Justice Amy Coney Barrett also appeared concerned about the broad implications of the challengers’ position. She asked Aguinaga about a scenario in which he and other Louisiana state government officials were doxed, followed by social media posts “about how people should rally and do something about this.” Could the FBI, she queried, “really encourage” social media platforms to take down the posts?
Aguinaga appeared to suggest that it could not. “If what the FBI is trying to do is trying to persuade a speech intermediary to take down a private third party’s speech,” he reiterated, that would be “an abridgement of speech.”
- ScotusBlog: Murthy v. Missouri.
- Wikipedia: Murthy v. Missouri.
