Biden administration contact with social media companies at issue in Supreme Court case

Can the federal government flex its muscle to influence censorship policies at social media firms? If so, how much? What if national security is at risk? And what if some of the censored speech turns out to be accurate?

Those were among the questions the Supreme Court weighed as it heard arguments on March 18 in the Murthy v. Missouri case, in which plaintiffs argued that President Joe Biden’s White House forced Facebook, X, and other platforms to censor speech — and controversial political speech in particular.

Most of the censored social media posts came from conservative or conservative-aligned figures, often from those who questioned COVID-19 orthodoxy about vaccines, lockdowns, and the lab leak origin theory of the disease. A federal district court judge barred the Biden administration from contacting certain tech firms last summer over what critics call its heavy-handed censorship push.

Thus, though Murthy v. Missouri is billed as a free speech case, the speech in question is mostly government speech, which small government scholars will quickly point out is not protected by the First Amendment.

“The First Amendment is protection against the government, not for the government,” New Civil Liberties Alliance attorney Jenin Younes said on a call with reporters previewing the case.

That was certainly the cry of a group of fired-up protesters who gathered outside the Supreme Court building ahead of the hearings. Participants shouted slogans and lofted signs reading “censorship is the tool of tyrants” and “freedom of speech includes views you don’t like.”

Former Biden administration chief medical adviser Anthony Fauci, for many the face of the pandemic, came in for special criticism, with protest signs charging “Fauci is the tyrant the founding fathers warned us about” and “Fauci’s lies matter.”

But before the court, the argument was not so easy to lock down.

The attorneys general of Louisiana and Missouri brought the case in 2022, arguing the government overstepped in combating what it deemed to be misinformation.

Brian Fletcher, arguing for the Biden administration, said the government does, in fact, have a right to speech.

“The court has said that the government is entitled to speak for itself,” he said. “It’s not a right that comes from the First Amendment. It’s a feature of our constitutional democracy. As the court has said, the government couldn’t function if it couldn’t express points of view.”

Fletcher stressed that the government was simply persuading the companies to act rather than coercing. That brought a line of questioning from Justice Samuel Alito.

Leaning back in his chair, Alito noted there was “constant pestering” of the tech firms from government actors, who held regular meetings, suggested rules the companies could implement, and argued that both were “on the same team.”

“I can’t imagine the federal government taking that approach to the print media,” he said. “It’s treating Facebook and these other platforms like they’re subordinates.”

Alito gestured to the press section of the courtroom to emphasize his point, though there wasn’t a lot to point to. Unlike last year’s student loans case or the recent Trump v. Anderson hearings (the Colorado Supreme Court’s unsuccessful effort to kick the former president off the 2024 ballot), which featured packed press galleries, media attendance at the hearing was relatively sparse.

Fletcher countered by alluding to the context — the government wanted to get people vaccinated against a once-in-a-lifetime pandemic.

“That piece of context — it doesn’t change the First Amendment principles, but it’s relevant to how they apply here,” he said.

Justice Neil Gorsuch asked about Biden‘s July 2021 statement that social media firms were “killing people.” Is that coercion? Fletcher again brought up context and argued Biden was making an exhortation rather than a threat.

The statement reflected a general theme of the defense, that there was a lack of direct traceability between government action and controversial posts being removed, which sometimes happened months or even years after the jawboning.

Both Fletcher and the plaintiff’s attorney, J. Benjamin Aguinaga, referenced the 1963 Bantam Books v. Sullivan case, in which the Supreme Court struck down a state system of informal book censorship.

Fletcher said there were differences between the two cases, while Aguinaga called Murthy v. Missouri “the Bantam Books of the 21st century.”

“They were under pressure from the government,” Aguinaga said of the social media firms, arguing the coercion question was less important than the fact that the government’s goal was to suppress speech.

But if Fletcher got a grilling from Alito, Aguinaga found himself scrambling to answer questions from multiple skeptical justices.

Justice Sonia Sotomayor interrupted him, shaking her head as she reminded him of the reason they were asked about coercion.

“The private parties could have chosen on their own to censor that speech,” she said. “They could have said, ‘We think it’s obscene. I’m not going to be involved in this.’ The only issue became when that choice was overridden by the government.”

She then accused him of “confusing legal doctrines.”

Aguinaga apologized to three separate justices for any confusion he’d caused and was hit with a hypothetical from Justice Ketanji Brown Jackson in which social media platforms allowed posts challenging children to jump out of windows at increasingly tall heights, resulting in serious injuries and deaths.

“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 Aguinaga, worrying that his view would have the First Amendment “hamstringing the government.”

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The case may tie into traditional political divisions, with the left-leaning justices often speaking of the government’s power to do good and the right-leaning justices warning of government overreach, but the outcome may be less impactful than either side would hope.

The justices appeared to divide into multiple camps of thought and could rule in a splintered decision that denies both the plaintiff and defendant a clear victory. A final ruling is expected before the end of June.