The Supreme Court appeared hesitant on Monday about imposing severe restrictions on how government officials talk to social media platforms about content moderation decisions.
Questioning both sides sharply, the justices tried to figure out when it's okay for the government to urge the platforms to remove controversial content — if at all.
Several justices, both liberal and conservative, challenged the broad argument made by Louisiana Solicitor General Benjamin Aguiñaga, who argued that the government should not usually ask platforms to remove any content.
Several justices suggested that in some cases, the government's duty to protect its citizens could be more important than their First Amendment rights.
Justice Ketanji Brown Jackson brought up a hypothetical situation about a fictional internet challenge spreading online, in which teenagers dare each other to jump out of windows from increasing heights.
“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?” Jackson asked.
Aguiñaga responded that the government could publicly acknowledge the challenge as a public health threat but hesitated on the government asking platforms to remove the content if it is “protected speech.”
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Jackson later said to Aguiñaga.
Justice Amy Coney Barrett similarly questioned whether the FBI could encourage platforms to remove posts revealing personal information about public officials, or posting private or identifying information online with the intent to harm.
Aguiñaga, who declared himself a “purist on the First Amendment,” suggested that this would constitute an abridgement of speech.
“So the FBI can’t make — do you know how often the FBI makes those kinds of calls?” Barrett replied.
The case arose from the Biden administration’s efforts to combat misinformation online, which two Republican attorneys general argued amounted to a “campaign of censorship” aimed at deplatforming “unpopular speakers, viewpoints and content.”
Aguiñaga proposed that federal officials should raise concern publicly to balance out any false information online.
Officials in the Biden administration mostly focused their requests to social media companies on content related to the outcome of the 2020 presidential election, which former President Trump was disputing, and COVID-19, as false information about vaccines was widespread.
The Justice Department has argued that blocking communication between federal officials and social media companies could limit the government’s ability to address matters of public concern, prevent national security threats and relay information.
The case is expected to hinge on whether federal officials’ efforts to convince social media companies to moderate misleading or false posts amounted to coercion, effectively turning the platforms into state actors bound by the First Amendment.
In legal documents given to the court, technology industry groups strongly argued against being seen as agents of the federal government because of their communications with it.
Deputy Solicitor General Brian Fletcher argued that the Biden administration did not use force and was simply using its power to try to convince social media companies to remove certain content.
Fletcher pointed out that government officials never directly threatened or offered any incentive to social media companies to remove content, and these companies repeatedly refused their requests. He also argued that the attorneys general provided little evidence that the government’s requests directly resulted in moderation.
“They’re trying to link the government’s actions here and the timing of moderation that harmed them, and the timing just isn’t very good,” Fletcher said in his counterargument.
Also, the judges questioned whether the government would treat print media the same way as social media platforms, using strong language to persuade them to remove content that officials considered problematic. The comparison between print media and social media has been brought up in several social media-related arguments this term.
“I don’t know whether our public information officer is here today, but maybe she should take a note about this: So whenever [the media] write something that we don’t like, she 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,’” Justice Samuel Alito said while sparring with Fletcher, the Justice Department deputy solicitor general.
Republicans in Congress have grabbed onto the case as evidence that conservative viewpoints have been disfavored — and suppressed — by social media companies, especially regarding controversial topics from the 2020 election and COVID-19 pandemic.
Rep. Jim Jordan (R-Ohio), who along with 44 other members of Congress supported the state attorneys general, attended the arguments Monday. The House Judiciary Committee chair sometimes leaned in to listen carefully and other times checked his phone throughout the nearly two hours of arguments.
A Louisiana-based federal judge initially stopped Biden administration officials from communicating with social media companies about “the removal, deletion, suppression, or reduction” of content containing “protected free speech” last July.
A three-judge panel on the 5th U.S. Circuit Court of Appeals narrowed the original order in September but agreed that administration officials likely violated the First Amendment in asking social media companies to take down specific content.
The federal appeals court found that the White House, FBI, Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency used forceful tactics in their communications with social media companies.
While the highest court considers the case, the 5th Circuit’s order remains on hold, so government officials can keep reaching out to social media companies until the highest court makes a decision on the case's merits.
The case is the most recent in a term filled with social media-related issues for the Supreme Court. The court previously heard two other cases about whether public officials can block constituents on their personal profiles and whether states can stop social media companies from deleting posts based on their viewpoints.
On Friday, the court decided that officials cannot block constituents on social media when they have the authority to speak for the State on a specific matter and claim to have exercised that authority in the relevant posts.
However, the judges did not give a definite solution in the pair of cases from Michigan and California, but instead sent the issue back to the lower courts with a new legal test.
