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March 18, 2024Washington |  By: Jason Hancock and Ashley Murray - Missouri Independent

Suit alleging suppression of free speech met with skepticism at U.S. Supreme Court

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By Jason Hancock and Ashley Murray - Missouri Independent

WASHINGTON — The U.S. Supreme Court seemed skeptical Monday of a lawsuit alleging the federal government colluded with social media companies to suppress the freedom of speech, with a majority of justices across the ideological spectrum raising issues with the case and its potential consequences.

The Biden administration argued to the court there is no evidence that the government violated the First Amendment in its efforts to combat false, misleading or dangerous information online.

Beyond that, the court should dismiss the litigation because plaintiffs don’t have the right to sue, said Brian Fletcher, principal deputy solicitor general.

Arguments occurred in a packed courtroom, where just outside dozens of protesters held signs accusing the government of infringing on free speech.

The lawsuit was filed in 2022 by two states — Missouri and Louisiana — and five individuals who either were banned from a platform or whose posts were not prominently featured on social media sites such as Facebook, YouTube and X, formerly known as Twitter.

Fletcher argued that the plaintiffs have not shown any evidence that decisions by social media companies to remove or deprioritize content can be attributed to the government. Instead, the companies made their own decisions relying on their own content moderation policies.

There was no coercion or attempted intimidation, Fletcher said, and the best proof of that is that social media companies “routinely said ‘no’ to the government.”

“They didn’t hesitate to do it, and when they said ‘no’ to the government, the government never engaged in any sort of retaliation,” Fletcher said. “Instead, (the federal government) engaged in more speech. Ultimately, the president and the press secretary and the surgeon general took to the bully pulpit. We just don’t think that’s coercion.”

Benjamin Aguiñaga, the solicitor general for the Louisiana attorney general, argued that the government has no right to persuade platforms to violate Americans’ constitutional rights, “and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That is just being a bully.”

Emails obtained as part of the lawsuit, Aguiñaga contends, show the government badgered platforms behind closed doors, abused them with profanity and “ominously says that the White House is considering its options… all to get the platforms to censor more speech.”

“Under this onslaught,” he said, “the platforms routinely cave.”

Government agencies have routinely encouraged social media companies to restrict harmful or illegal content for years, including posts involving terrorism and human trafficking.

Aguiñaga argued that speech involving criminal activity is not protected. But the Biden administration, he said, began to push social media companies in 2021 to restrict misinformation about the COVID-19 vaccine.

Content was also targeted that involved election disinformation.

In 2022, U.S. District Judge Terry Doughty, a court nominee of President Donald Trump, ruled that officials under both President Joe Biden and Trump coerced social media companies to censor content over concerns it would fuel vaccine hesitancy during the COVID-19 pandemic or upend elections.

The 5th U.S. Circuit Court of Appeals in New Orleans prohibited the White House, the Surgeon General’s Office, the FBI, and the Centers for Disease Control and Prevention from having practically any contact with the social media companies. It found that the Biden administration most likely overstepped the First Amendment by urging the major social media platforms to remove misleading or false content.

The Supreme Court placed a temporary stay on the order in October until it decides the case.

Standing and traceability

A question at the core of Monday’s arguments was whether any harm to the plaintiffs could be, in fact, traced back to the government’s actions or could be remedied by judicial relief.

Justice Elena Kagan asked Aguiñaga to highlight “the single piece of evidence that most clearly shows the government was responsible for one of your clients having material taken down.”

“How do you decide that it’s government action as opposed to platform action?” Kagan followed.

Aguiñaga pointed to a May 2021 email the Biden administration sent to a social media platform regarding misinformation about COVID-19. Aguiñaga argued that evidence shows two months later content from one of the plaintiffs, Jill Hines of Louisiana, was suppressed.

“A lot of things can happen in two months,” Kagan said. “So that decision two months later could have been caused by the government’s email or that government email might have been long since forgotten because there are a thousand other communications that platform employees have had with each other, a thousand other things that platform employees have read in the newspaper.”

“I mean why would we point to one email two months earlier and say it was that email that made all the difference?” Kagan said.

Justices question consequences for public safety, national security

During Monday’s arguments, the justices focused on whether encouragement by federal officials amounted to illegal coercion, rather than merely informing or persuading social media companies.

“There are lots of contexts where government officials can persuade private parties to do things the officials couldn’t do directly,” Fletcher argued when Justice Clarence Thomas questioned him about coercion versus censorship.

“For example, recently after the Oct. 7 attacks on Israel, a number of public officials called on colleges and universities to do more about antisemitic hate speech on campus,” Fletcher said.

An ideologically diverse majority of justices raised concerns about the potential consequences of the litigation for things like public safety and national security.

Justice Brett Kavanaugh questioned whether the government violates the First Amendment when it requests the removal of factually inaccurate posts. He suggested there could be national security concerns if false information was posted online about troops.

Kavanaugh also asked how the federal government’s communications with social media companies were any different than when news organizations are warned that a story they are about to publish could affect national security.

Justice Amy Coney Barrett continued along that line of questions, asking whether the FBI would still be able to warn social media platforms if an individual had been doxxed in a way that might put them at risk.

Aguiñaga countered that he is a free speech purist but in that circumstance, the government would be allowed to issue warnings to social media companies about content.

But when speech is protected, the government has no right to intervene to push for it to be censored, he said.

“When the government is identifying a specific viewpoint and specific content that it wishes to wholly eliminate from public discourse, that’s when the First Amendment problem arises,” he said, later adding that the government has lots of tools at its disposal to combat misinformation.

“Censorship,” he said, “has never been the default remedy for a perceived First Amendment violation.”

That argument didn’t move Justice Ketanji Brown Jackson.

“You have to admit that there are certain circumstances,” she said, “in which the government can provide information and encourage the platforms to take it down.”

The most scathing criticism of the day came from Justice Sonia Sotomayor.

“I have such a problem with your brief, counselor,” Sotomayor said to Aguiñaga. “You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to. I don’t know what to make of all this.”

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

Justice Samuel Alito, who sat back and rocked his chair with his hands behind his head, seemed most sympathetic to the plaintiffs’ case, reframing the discussion as Aguiñaga was facing a series of difficult questions.

“Coercion doesn’t only apply when the government says ‘do this, and if you don’t do this, there are going to be legal consequences,’” Alito said, adding: “It’s a more flexible standard and… you have to take into account the whole course of the relationship.”

In his rebuttal, Fletcher compared the Biden administration’s communications with social media companies and public comments about misinformation to President George W. Bush’s public condemnation of pornography and President Ronald Reagan’s criticism of media influence of drugs and violence.

A ruling on the case is not expected for several months.

Plaintiff reaction

Missouri Attorney General Andrew Bailey said afterward he believes the Supreme Court justices “will make the right decision here.”

“Ultimately that (decision) will continue to build a wall of separation between tech and state using this lawsuit. The court will affirm the district court injunction and we’re excited to get back to the district court level,” Bailey told reporters on the plaza in front of the Supreme Court after arguments concluded.

When asked for his reaction to the justices’ skepticism of Aguiñaga’s argument of government coercion, Bailey said “the evidence clearly establishes coercion.”

Bailey argued that evidence gathered by Missouri, Louisiana and the individual plaintiffs reveals the Biden administration threatened reform of Section 230 of the Communications Decency Act, which currently shields social media companies from liability for content published on their platforms.

“Those are direct explicit threats against the big tech social media giants,” he said.

The Department of Justice declined to comment on the ongoing litigation.