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Supreme Court hears arguments on whether the federal government can limit free speech on social media

Two Republican attorneys general in Louisiana and Missouri want to curb the Biden administration's interactions with social media companies.

The front of the Supreme Court has a carved panel above the columns that reads: Equal justice under law.
The Supreme Court. (Saul Loeb/AFP via Getty Images)

The Supreme Court heard arguments for another social-media-related case on Monday — the latest in a string of cases this term that has had the justices assessing what free speech looks like in the digital era.

The majority of the justices seemed skeptical about the claims that the Biden administration coerced social media platforms to remove content it deemed problematic or misinformation. It’s part of a growing conversation around the extent to which the government should be allowed to get involved with a public debate.

A decision on the case will likely come in June when the term ends.

The case also comes on the heels of the Supreme Court hearing landmark cases from Texas and Florida that argued social media platforms should not be allowed to remove users’ posts, even if they violate content policies or promote misinformation and hate.

🔮 What are the implications of these social media cases?

Free speech advocates are hoping the Supreme Court will use Murthy v. Missouri to finally establish how the government can intervene when it comes to dangerous misinformation on social media without threatening First Amendment protection.

“The government has no authority to threaten platforms into censoring protected speech, but it must have the ability to participate in public discourse so that it can effectively govern and inform the public of its views,” Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said in a statement.

📝 What to know about the Biden administration’s case

Two Republican attorneys general in Louisiana and Missouri, alongside several social media users, alleged that federal officials “coordinated and colluded” with social media platforms to “identify disfavored speakers, viewpoints, and content” and then censored them, The Hill reported.

The central debate in the case is whether the Biden administration violated the First Amendment by attempting to police what it considered to be misinformation about the 2020 election and COVID-19 vaccines.

Last summer Louisiana-based federal Judge Terry Doughty sided with the attorneys general and said Biden administration officials could not contact social media companies relating to “the removal, deletion, suppression or deduction” of content.

The New Orleans-based Fifth Circuit Court of Appeals agreed with the lower court that Biden officials likely did violate the First Amendment, which should protect social media companies from being “coerced” by federal agencies.

The Supreme Court blocked the appeals court ruling in October. Conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch noted they disagreed with the majority’s decision to block, saying, “Government censorship of private speech is antithetical to our democratic form of government.”

⚖️ What’s the argument Biden administration lawyers are making?

Brian Fletcher, the principal deputy solicitor general for the Biden administration, is arguing that the government does have the right to correspond with social media companies as long as it does not “coerce” them. Fletcher claimed the distinction between conversations and “coercion” is whether the government makes threats.

Justice Department lawyers allege that in cases like COVID-19 misinformation, the federal government was highlighting posts it thought were causing “preventable deaths” to the tech platforms hosting them, Reuters reported. They also claim that there is no evidence to show that the government tied regulatory threats to content moderation decisions.

In a conversation with Justice Brett Kavanaugh, Fletcher said, “Platforms — newspapers — want to know if they’re publishing a story that might put lives at risk. And they don’t have to listen to the government, but that’s information that they can consider when exercising their editorial judgment.”

Kavanaugh responded that what would make that sentiment coercion is if the government added, “And if you publish the story [anyway] we’re going to pursue antitrust action against you.” Fletcher agreed.

🛑 What’s the argument against the Biden administration?

The solicitor general of Louisiana, J. Benjamin Aguiñaga, said the government was coercing social media platforms into taking down posts, which counts as censorship.

During the hearing on Monday, Aguiñaga emphasized that social media platforms are allowed to make independent decisions about what stays on their sites; the problem is when government officials get involved to determine that.

He claimed Biden officials were putting “unrelenting government pressure” on platforms in conversations “shielded from public video.”

In response to Kavanaugh’s hypothetical about the government reaching out to a publication or newspaper about a story, Aguiñaga said that is the government going directly to the speaker. In the case of social media, the government is going to a third party, not the poster.

Justice Ketanji Brown Jackson asked Aguiñaga specifically why the government can’t make decisions about posts that could cause harm, such as posts that lead teenagers to die by suicide. Aguiñaga argued that the appropriate reaction would be for the government to flag issues but not pressure platforms to remove the content.

🏛️ Supreme Court justices seem skeptical Biden administration violated 1st Amendment

During the oral arguments, multiple justices from both the liberal and conservative sides questioned whether the Biden administration crossed the line into coercion and whether the social media user plaintiffs who brought the lawsuit could even prove they were harmed by the posts being taken down.

They also raised issues about the lack of evidence that could prove officials threatened social media companies if they weren’t cooperative.

Justice Sonia Sotomayor told Aguiñaga she had a “problem” with his brief.

“You omit information that changes the context of some of your claims,” she told the solicitor general. “You attribute things to people who it didn’t happen to. At least in one of the defendants, it was her brother that something happened to, not her. I don’t know what to make of all of this because I am not sure how we get to prove direct injury in any way.”

In a conversation with Justice Amy Coney Barrett, Aguiñaga asked whether the FBI should be allowed to ask Facebook or X to take down posts that could publicize someone’s personal information, otherwise known as doxing.

“Do you know how often the FBI makes those calls?” Barrett asked, suggesting it happens frequently.

📱 This is the 5th argument regarding free speech and technology the Supreme Court has heard since October

In addition to last month’s cases on whether Florida and Texas could limit social media companies from moderating content, on March 15 the court, in two unanimous rulings, also set requirements for when elected officials are allowed to block people from their social media accounts.

The justices had to distinguish between what constitutes private conduct, which is not subject to First Amendment protection, and state action, which is protected.

Read more about Friday’s case from ABC News: Supreme Court sets rules on when public officials can block social media users