Washington (Associated Press) supreme court On Monday, he appeared likely to side with the Biden administration in a dispute with Republican-led states over how far the federal government can go. Controversial social media posts They will argue topics including COVID-19 and election security in a case that could set the standard for free speech in the digital age.
The justices were largely skeptical during roughly two hours of arguments filed by lawyers for Louisiana, Missouri and other parties accusing Democratic administration officials of using social media platforms to unconstitutionally suppress conservative voices.
Lower courts sided with the states, but the Supreme Court blocked those rulings while it considered the issue.
Several justices said they were concerned that a ruling in favor of states could affect everyday interactions between government authorities and the platforms.
For example, Justice Amy Coney Barrett expressed surprise when Louisiana Attorney General J. Benjamin Aguiñaga questioned whether the FBI could call Facebook or Twitter (formerly Twitter) to urge them to remove posts that maliciously publicly share personal information about people without their permission (known as doxxing).
“Do you know how often the FBI makes those calls?” Barrett asked, suggesting they are a common occurrence.
Justice Brett Kavanaugh also suggested that a ruling in favor of the states would mean “traditional, everyday communication would suddenly become problematic.”
Monday's case is one of several affecting social media companies in the context of free speech. Last week, the court Criteria for allowing public officials to block social media followersLess than a month later, the court Republican-passed laws in Florida and Texas It would ban major social media companies from removing posts based on the opinions expressed in them.
The state law lawsuit and the one heard Monday are variations on the same theme: complaints that the platforms are censoring conservative views.
The states claim that it was White House spokespersons, the Surgeon General, the FBI and US cybersecurity agencies who forced them to change online content on social media platforms.
Judge Aguiñaga described the situation as harsh, telling the justices that “the record reveals unrelenting government pressure to compel social media platforms to suppress the speech of millions of Americans.”
Responding to Justice Ketanji Brown Jackson's hypothetical scenario of online protests in which “teenagers jump out of high-altitude windows,” he said that even mere calls to action on platforms could violate speech rights.
Jackson, along with Chief Justice John Roberts, pressed Louisiana lawyers on whether they could encourage the platforms to remove such posts.
“Your Honor, I was with you until your last comment,” Aguiñaga said. “I think they can absolutely call and say this is a problem, this is rampant on your platform, but the moment the government uses its power and position as government to try to pressure them to take it down, that's interfering with a third party's right of speech.”
Justice Samuel Alito was the most accommodating of the states' arguments, at one point noting that the government “continually harasses Facebook and some of the other platforms.” Justice Alito, along with Justices Neil Gorsuch and Clarence Thomas, would have allowed restrictions on the platforms' interactions with the government to go into effect.
Department of Justice lawyer Brian Fletcher argued that none of the actions the states are suing for amount to problematic coercion and that the federal government would lose its ability to communicate with social media companies about anti-Semitic and anti-Muslim posts, as well as issues such as national security, public health and election integrity.
These platforms are large, sophisticated actors who have no qualms about pushing back against governments, “and repeatedly say no when they don't agree with what the government wants,” Fletcher said.
Justices Elena Kagan and Kavanaugh, two justices who served in the White House early in their careers, appeared to agree, likening the interactions between officials and the platforms to the relationship between the government and more traditional media.
“There are experienced government spokespeople throughout the federal government who regularly call and reprimand the media,” Kavanaugh said.
Kagan then said, “This kind of thing happens literally thousands of times a day in the federal government.”
Pointing to the press box in the courtroom, Justice Alito said that whenever a reporter “writes something we don't like,” the court press secretary can “call them in, yell at them and say, 'Can't we be partners? We're on the same team. Why don't you show us in advance what you're going to write? We'll edit it and make sure it's accurate.'”
Free speech advocates said the court should use the case to properly determine whether the government's exercise of power is permissible or a coercive threat to free speech.
“We are encouraged that the Court took into consideration both the First Amendment rights of the platforms and their users, and the public interest in government having the power to weigh in on public debate. As such, we hope the Court will resolve these cases making clear that while the First Amendment prohibits coercion, it does allow the government to use persuasion to attempt to shape public opinion,” Alex Abdo, litigation director at Columbia University's Knight First Amendment Institute, said in a statement.
A three-judge panel of the New Orleans-based 5th Circuit Court of Appeals had ruled that the Biden administration likely exerted unconstitutional pressure on media platforms. The appeals panel said officials cannot “compulsory or significantly encourage” changes to online content. The panel had previously limited a broader order by a federal judge who wanted to target many more government officials and bar the mere encouragement of content changes.
The Supreme Court was divided and agreed in October to stay the 5th Circuit's decision and hear the case.
A decision in Marcy v. Missouri, 23-411, is expected by early summer.