Supreme Court likely to reject strict limits on government contact with social media companies in free speech case

The Supreme Court on Monday appeared likely to reject strict limits on government contact with social media companies amid claims that federal officials had engaged in a "broad pressure campaign" to censor certain viewpoints related to the COVID-19 pandemic and the 2020 election.

The case, Murthy v. Missouri, was brought by two Republican-led states and five right-wing individual social media users, who allege the Biden administration illegally coerced Facebook, Twitter, and other online platforms to remove content that it considered harmful.

Two lower courts found the administration had violated free-speech protections of the First Amendment and imposed an injunction – which remains on hold -- against future coordination over alleged misinformation.

In one example at the center of the case, a White House official sent an email to a Twitter staffer after a post by Robert F. Kennedy Jr. suggested, without evidence, that baseball legend Hank Aaron had died from the COVID-19 vaccine.

"Wanted to flag the below tweet and am wondering if we can get moving on the process for having it removed ASAP," the official wrote, according to a copy of the message produced in court filings.

The White House has argued that its contact with the companies has been aimed at protecting public health, national security and election integrity and has never involved threats of adverse consequences. The private companies have said publicly that they can and do moderate content as they wish.

"The government can persuade a private party to do something that the private party's lawfully entitled to do, and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop," Principal Deputy Solicitor General Brian Fletcher told the court.

The justices wrestled with where to draw the line between persuasion – which would be constitutionally permissible – and coercion – when the government improperly "jawbones" social media companies to silence certain speech.

A majority of justices signaled they did not believe the Biden administration had gone too far.

"There's all kinds of things that can appear on these platforms that do all kinds of different harms," said Justice Elena Kagan. She suggested the government must be able to "reach out to these platforms and say we want to give you information that you might not know about on this, and we want to give you our perspective on what harms this is doing."

Justice Amy Coney Barrett posed a hypothetical situation involving FBI calls to a social media platform urging it to take down posts that doxed elected officials, putting the individuals safety at risk. "That's a problem?" she asked Louisiana Solicitor General Benjamin Aguinaga, representing the plaintiffs.

"I'm a purist on the First Amendment, so my answer would be yeah," Anguinaga replied.

"Do you know how often the FBI makes those kinds of calls?" said Justice Barrett incredulously.

Several justices openly questioned whether the plaintiffs had presented sufficient evidence that government pressure is what led the companies to remove the content at issue or that the government coercively threatened the companies to act in the first place.

"I'm not sure how we get to prove direct injury in any way," Justice Sonia Sotomayor told Anguinaga.

A number of justices also expressed concern about curbing legitimate government responsibility in matters of public safety, such as flagging accounts of malign foreign actors or protecting teenagers from dangerous viral trends.

Justice Ketanji Brown Jackson asked whether the government could urge online platforms to take down trending videos that nudged teenagers to jump out of windows at increasing elevations.

"Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?" she asked Anguinaga.

"The government absolutely can use the pulpit to say publicly, here's what we recognize to be a public health issue, emergency," he replied. "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 sympathetic to the plaintiffs, questioning why the government - in his view - was treating Facebook "like its subordinate" and badgering company contacts to take certain actions.

He and other conservatives have been openly skeptical of the government asserting itself as the arbiter of truth and fact, using its influence to stifle speech in the public square.

"I thought: 'Wow, I cannot imagine federal officials taking that approach to the print media,'" Alito said. "If you did that to them, what do you think the reaction would be? ... It's treating Facebook and these other platforms like they're subordinates."

A decision in the case is expected by the end of June.