WASHINGTON (AP) — The Supreme Court seemed likely Monday to side with the Biden administration in a dispute with Republican-led states over how far the federal government can go to combat controversial social media posts on topics including COVID-19 and election security in a case that could set standards for free speech in the digital age.
The justices seemed broadly skeptical during nearly two hours of arguments that a lawyer for Louisiana, Missouri and other parties presented accusing officials in the Democratic administration of leaning on the social media platforms to unconstitutionally squelch conservative points of view.
Lower courts have sided with the states, but the Supreme Court blocked those rulings while it considers the issue.
Several justices said they were concerned that common interactions between government officials and the platforms could be affected by a ruling for the states.
In one example, Justice Amy Coney Barrett expressed surprise when Louisiana Solicitor General J. Benjamin Aguiñaga questioned whether the FBI could call Facebook and X (formerly Twitter) to encourage them to take down posts that maliciously released someone’s personal information without permission, the practice known as doxxing.
“Do you know how often the FBI makes those calls?” Barrett asked, suggesting they happen frequently.
Justice Brett Kavanaugh also signaled that a ruling for the states would mean that “traditional, everyday communications would suddenly be deemed problematic.”
The case Monday was among several the court is considering that affect social media companies in the context of free speech. Last week, the court laid out standards for when public officials can block their social media followers. Less than a month ago, the court heard arguments over Republican-passed laws in Florida and Texas that prohibit large social media companies from taking down posts because of the views they express.
The cases over state laws and the one that was argued Monday are variations on the same theme, complaints that the platforms are censoring conservative viewpoints.
The states argue that White House communications staffers, the surgeon general, the FBI and the U.S. cybersecurity agency are among those who coerced changes in online content on social media platforms.
Aguiñaga put the situation in stark terms, telling the justices that “the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans.”
He said that calls merely encouraging the platforms to act also could violate speech rights, responding to a hypothetical situation conjured by Justice Ketanji Brown Jackson, about an online challenge that “involved teens jumping out of windows at increasing elevations.”
Jackson, joined by Chief Justice John Roberts, pressed the Louisiana lawyer about whether platforms could be encouraged to remove such posts.
“I was with you right until that last comment, Your Honor,” Aguiñaga said. “I think they absolutely can call and say this is a problem, it’s going rampant on your platforms, but the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you’re interfering with the third party’s speech rights.”
Justice Samuel Alito appeared most open to the states’ arguments, at one point referring to the government’s “constant pestering of Facebook and some of the other platforms.” Alito, along with Justices Neil Gorsuch and Clarence Thomas, would have allowed the restrictions on government contacts with the platforms to go into effect.
Justice Department lawyer Brian Fletcher argued that none of the actions the states complain about come close to problematic coercion and that the federal government would lose its ability to communicate with the social media companies about antisemitic and anti-Muslim posts, as well as on issues of national security, public health and election integrity.
The platforms are large sophisticated actors with no reluctance to stand up to the government, “saying no repeatedly when they disagree with what the government is asking them to do,” Fletcher said.
Justice Elena Kagan and Kavanaugh, two justices who served in the White House earlier in their careers, seemed to agree, likening the exchanges between officials and the platforms to relationships between the government and more traditional media.
Kavanaugh described “experienced government press people throughout the federal government who regularly call up the media and — and berate them.”
Later, Kagan said, “I mean, this happens literally thousands of times a day in the federal government.”
Alito, gesturing at the courtroom’s press section, mused that whenever reporters “write something we don’t like,” the court’s chief spokeswoman “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.”
Free speech advocates said the court should use the case to draw an appropriate line between the government’s acceptable use of the bully pulpit and coercive threats to free speech.
“We’re encouraged that the Court was sensitive both to the First Amendment rights of platforms and their users, and to the public interest in having a government empowered to participate in public discourse. To that end, we hope that the Court resolves these cases by making clear that the First Amendment prohibits coercion but permits the government to attempt to shape public opinion through the use of persuasion,” Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said in a statement.
A panel of three judges on the New Orleans-based 5th U.S. Circuit Court of Appeals had ruled earlier that the Biden administration had probably brought unconstitutional pressure on the media platforms. The appellate panel said officials cannot attempt to “coerce or significantly encourage” changes in online content. The panel had previously narrowed a more sweeping order from a federal judge, who wanted to include even more government officials and prohibit mere encouragement of content changes.
A divided Supreme Court put the 5th Circuit ruling on hold in October, when it agreed to take up the case.
A decision in Murthy v. Missouri, 23-411, is expected by early summer.
