At the Supreme Court Monday, a majority of the justices seemed highly skeptical of claims that federal government officials may be broadly barred from contacts with social media platforms.
At issue was a sweeping Fifth Circuit Court of Appeals decision that barred White House officials, FBI officials, CDC and election experts, and officials from other agencies from having contacts with social media platforms.
The appeals court decision is on hold pending a Supreme Court decision in the case later in the term, though the court's three most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would have allowed it to go into effect.
Five individuals and two Republican-dominated states — Louisiana and Missouri — claim that the government is violating the First Amendment by systematically pressuring social media companies to take down what the government sees as false and misleading information. The Biden administration counters that White House and agency officials are well within their rights to persuade social media companies about what they see as erroneous information about COVID-19, or foreign interference in an election, or even election information about where to vote.
Government contact with media companies
Two justices who once worked in the White House — Brett Kavanaugh, a Trump appointee, and Elena Kagan, an Obama appointee — were the most outspoken about the long history of government contacts with media companies.
"I had ... experienced government press people throughout the federal government who regularly call up the media and berate them," said Kavanaugh, though it was unclear if he was the berating target or perpetrator.
Justice Kagan admitted to having dished out complaints.
"Like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech," she said. "'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."
She and Justice Amy Coney Barrett postulated that the FBI might contact social media companies to tell them that, while they may not realize it, they have been posting information from a terrorist group aimed at covert recruitment.
Louisiana Solicitor General Benjamin Aguiñaga argued that when government officials contact social media companies, even encouraging a particular course of action amounts to unconstitutional pressuring. That prompted this from Justice Barrett: "Just plain vanilla encouragement," she asked, her voice rising in gentle disbelief. "Or does it have to be some kind of significant encouragement, because encouragement would sweep in an awful lot."
Aguiñaga, however, didn't have a clear line of differentiation, except to claim that pressuring print and other media outlets is different from pressuring social media platforms.
When can government act?
What about publishing classified information, asked Justice Kavanaugh. Are you suggesting the government can't try to get that taken down? Or what about factual inaccuracies?
Justice Ketanji Brown Jackson asked about matters of public safety. What if young people were being injured or killed carrying out a new online fad that called for jumping out of windows. Couldn't the government legitimately ask platforms to take that down.
When Aguiñaga fudged, Chief Justice John Roberts followed up.
"Under my colleague's hypothetical, it was not necessarily to eliminate viewpoints," the purpose of the contact was to eliminate "some game that is seriously harming children around — around the country, and they say we — we encourage you to stop that."
Aguiñaga agreed that "as a policy matter, it might be great for the government to be able to do that, but 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."
Several justices questioned the record in the case. Justice Kagan said she did not see "even one item" that supported barring government contacts. Justice Sonia Sotomayor was even more direct telling Aguiñaga, "I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn't happen to... I'm not sure how we get to prove direct injury in any way."
Conservatives skeptical of government's position
Representing the Biden administration, Deputy Solicitor General Brian Fletcher took incoming fire mainly from Justices Alito, Gorsuch and Thomas. But he stuck to his contention that when the government seeks to persuade a social media platform that it should take down a post, that is an attempt at persuasion, not coercion.
Unlike some of his conservative colleagues, Justice Alito was skeptical of all aspects of the government's argument.
"There is constant pestering of Facebook and some of the other platforms," he said. Government officials "want to have regular meetings," and they suggest rules that should be applied ... And I thought, 'Wow, I cannot imagine federal officials taking that approach to the print media?'"
Alluding to a statement made by President Biden at the height of the pandemic, Justice Gorsuch asked whether "an accusation by a government official that unless you change your policies, you're responsible for killing people," could be viewed as coercion?
Fletcher replied that he found it "hard to imagine" such a public statement being coercion, though he conceded it's not impossible. "All I'm saying is it didn't happen here," he said. "The president said this to the public in the middle of a pandemic, and then three days later — I think this is important — he clarified. He said, 'I'm not saying Facebook is killing people. I'm saying the people spreading misinformation are.'"
And when he was "explicitly asked [whether he] will hold [the platforms] accountable, the president replied, 'I just want everyone to look in their mirror and imagine what would happen if this misinformation was going to their loved ones.' I think it's clear that this was exhortation, not threat."
Justice Thomas, who has long complained that social media companies unconstitutionally censor speech, pressed Fletcher about what speech rights the government has under the Constitution. Fletcher replied that the court has repeatedly said "that the government is entitled to speak for itself. It's not a right that comes from the First Amendment. It's a feature of our constitutional democracy."
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