Supreme Court Wary of Limiting Government Contact With Social Media Companies

An effort by two Republican-led states to limit the Biden administration’s interactions with social media companies met a rocky reception at the Supreme Court on Monday, with several justices questioning the states’ legal theories and factual assertions.

A majority of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.

Justices Brett M. Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage were, they said, part of a valuable dialogue that was not prohibited by the First Amendment.

Members of the court also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five individuals — had suffered the kind of injury that gave them standing to sue. They also suggested that a broad injunction prohibiting contacts between many officials and the platforms was not a proper remedy in any event.

Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your brief,” she told J. Benjamin Aguiñaga, Louisiana’s solicitor general. “You omit information that changes the context of some of your claims.”

Mr. Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”

The case was the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines and claims of election fraud. Last year, a federal appeals court severely limited such interactions.

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

Here’s what else to know:

  • Brian Fletcher, the principal deputy solicitor general for the Biden administration, argued that the government has a right to speak to social media companies in an effort to persuade them to choose to remove or curtail certain matters, so long as it does not coerce them. He said the test should be whether the government makes threats; bully-pulpit exhortations are protected by the First Amendment, he said.

  • Mr. Fletcher added that the social media platforms are large companies with sufficient clout to rebuff government efforts to influence them. In fact, when university researchers working with the government flagged misinformation about the 2020 election, the platforms refused to do anything two-thirds of the time.

  • Benjamin Aguiñaga, the solicitor general of Louisiana, one of the Republican-controlled states that brought the lawsuit, said that the government was coercing social media platforms into taking down posts, amounting to government censorship. He addressed a key issue in the government content moderation efforts of the past few years — what began as attempts to address foreign meddling and disinformation moved to cover speech from Americans in 2020, over an election and a pandemic.

  • The case, Murthy v. Missouri, No. 23-411, was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with individuals who said their speech had been censored. They did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down what they say is misinformation amounted to censorship that violated the First Amendment.

  • A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about what they had flagged as misinformation. The panel, in an unsigned opinion, said the officials had become excessively entangled with the platforms or used threats to spur them to act.

  • The court granted the Biden administration’s application to put the Fifth Circuit’s ruling on hold and agreed to hear the case. Three justices dissented. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

  • A second argument on Monday poses a related constitutional question about government power and free speech, though not in the context of social media sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

Charlie Savage, Jim Rutenberg and Steven Lee Myers contributed reporting.

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