Supreme Court appears wary of limiting feds’ interactions with social media companies

The Supreme Court seemed wary Monday of imposing harsh limits on how federal officials communicate with social media platforms about content moderation decisions.

Sharply questioning both sides, the justices sought to determine when it is appropriate for the government to encourage the platforms to remove controversial content — if ever.

Several justices, both liberal and conservative, pushed against the sweeping argument made by Louisiana Solicitor General Benjamin Aguiñaga, who claimed the government should not, in most circumstances, ask platforms to remove any content.

Several justices suggested that in some instances, the government’s responsibility to protect its citizens could outweigh their First Amendment rights.

Justice Ketanji Brown Jackson raised a hypothetical about a made-up internet challenge blowing up online, in which teens encourage each other to jump out of windows from increasing heights.

“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 replied that the government could publicly recognize the challenge as a public health threat but hesitated on the government asking platforms to remove the content if it is “protected speech.”

“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Jackson later said to Aguiñaga.

Justice Amy Coney Barrett similarly questioned whether the FBI could encourage platforms to remove posts doxxing public officials, or posting private or identifying information online with the intent to harm.

Aguiñaga, who declared himself a “purist on the First Amendment,” suggested that this would constitute an abridgement of speech.

“So the FBI can’t make — do you know how often the FBI makes those kinds of calls?” Barrett replied. 

The case stemmed from the Biden administration’s efforts to curb misinformation online, which two Republican attorneys general contended amounted to a “campaign of censorship” bent on deplatforming “disfavored speakers, viewpoints and content.”

Aguiñaga suggested that federal officials should raise concern publicly to counterbalance any false information online.

Biden administration officials’ requests to social media companies largely focused on content about the results of the 2020 presidential election, which former President Trump was contesting, and COVID-19, as vaccine misinformation ran rampant.

The Justice Department has argued that blocking communication between federal officials and social media companies could limit the government’s ability to address matters of public concern, prevent national security threats and relay information.

The case is expected to turn on whether federal officials’ efforts to persuade social media companies to moderate misleading or false posts amounted to coercion, effectively turning the platforms into state actors bound by the First Amendment.

In amicus briefs submitted to the court, tech industry groups vigorously argued against being construed as agents of the federal government because of their communications with it. 

Principal Deputy Solicitor General Brian Fletcher argued the Biden administration had not crossed the line into coercion and was simply using its power to attempt to persuade social media companies to remove certain content.

Fletcher pointed to the fact that administration officials never explicitly threatened or offered any inducement to social media companies to remove content and that these companies repeatedly refused their requests. He also argued that the attorneys general provided little evidence that the government’s requests directly led to moderation.

“They’re trying to draw the connection between the government’s acts here and moderation that harmed them through timing, and the timing just isn’t very good,” Fletcher said in his rebuttal argument.

Additionally, the justices questioned whether the government would treat print media the same way as the government treated social media platforms, using forceful language to persuade them to remove content officials deemed problematic. The comparison between print media and social media has been raised in several social media-related arguments this term.

“I don’t know whether our public information officer is here today, but maybe she should take a note about this: So whenever [the media] write something that we don’t like, she can call them up and curse them out and say, ‘Why don’t we be partners? We’re on the same team, why don’t you show us what you’re going to write beforehand. We’ll edit it for you, make sure it’s accurate,’” Justice Samuel Alito said while sparring with Fletcher, the Justice Department deputy solicitor general.

Republicans in Congress have latched onto the case as evidence that conservative viewpoints have been disfavored — and stifled — by social media companies, particularly over controversial topics stemming from the 2020 election and COVID-19 pandemic.

Rep. Jim Jordan (R-Ohio), who alongside 44 other members of Congress signed onto an America First Legal amicus brief in support of the state attorneys general, attended arguments Monday. The House Judiciary Committee chair sometimes leaned in to listen intently and other times checked his phone throughout the nearly two hours of arguments.

A Louisiana-based federal judge initially barred Biden administration officials from communicating with social media companies about “the removal, deletion, suppression, or reduction” of content containing “protected free speech” last July.

A three-judge panel on the 5th U.S. Circuit Court of Appeals narrowed the original order in September but agreed that administration officials likely violated the First Amendment in asking social media companies to take down specific content.

The federal appeals court found that the White House, FBI, Centers for Disease Control and Prevention and the Cybersecurity and Infrastructure Security Agency crossed the line into coercion in their communications with social media companies.

While the Supreme Court weighs the case, the 5th Circuit’s injunction remains paused, meaning federal officials can continue contacting social media companies until the high court decides the case on merits.

The case is the latest in a social media-heavy term for the Supreme Court, which previously heard two other cases about whether public officials can block constituents on their personal profiles and whether states can prevent social media companies from removing posts over their viewpoints.

The court ruled Friday that officials cannot block constituents on social media when they have “actual authority to speak on behalf of the State on a particular matter” and “purported to exercise that authority in the relevant posts.”

However, the justices did not provide any definitive resolution in the pair of cases from Michigan and California, instead tossing the issue back to the lower courts with the new legal test.