WASHINGTON, March 18 (Reuters) -
U.S. Supreme Court justices on Monday appeared skeptical of
a challenge on free speech grounds to how President Joe Biden's
administration encouraged social media platforms to remove posts
that federal officials deemed misinformation, including about
elections and COVID-19.
The justices heard oral arguments in the administration's
appeal of a lower court's preliminary injunction constraining
how White House and certain other federal officials communicate
with social media platforms.
The Republican-led states of Missouri and Louisiana, along
with five individual social media users, sued the
administration. They argued that the government's actions
violated the U.S. Constitution's First Amendment free speech
rights of users whose posts were removed from platforms such as
Facebook, YouTube, and Twitter, now called X.
The case tests whether the administration crossed the line
from mere communication and persuasion to strong arming or
coercing platforms - sometimes called "jawboning" - to
unlawfully censor disfavored speech, as lower courts found.
Biden's administration has argued that officials sought to
mitigate the hazards of online misinformation, including false
information about vaccines during the pandemic that they said
was causing preventable deaths, by alerting social media
companies to content that violated the platforms' own policies.
Justice Department lawyer Brian Fletcher told the justices
that the government may not use coercive threats to suppress
speech, but it is "entitled to speak for itself" by informing,
persuading or criticizing private speakers.
The plaintiffs have argued that platforms suppressed
conservative-leaning speech, which they attribute to government
coercion, a form of state action barred by the First Amendment.
Questions posed by some of the justices focused on whether
the plaintiffs had proper legal standing to sue, and how the
government had caused harm.
Conservative Justice John Roberts told Benjamin Aguinaga,
Louisiana's solicitor general, that the government is "not
monolithic" and when the government applies pressure, a platform
or media outlet "have people they go to, probably in the
government, to say, 'Hey, they're trying to get me to do this,'
and that person may disagree with what the government's trying
to do."
Roberts added: "That has to dilute the concept of coercion
significantly, doesn't it?"
Conservative Justice Samuel Alito expressed alarm at the
pressure administration officials applied to social media
platforms to target misinformation, treating them as
"subordinates," demanding answers, exhorting them to be
"partners," and "cursing them out" when dissatisfied.
"I cannot imagine federal officials taking that approach to
the print media," Alito said.
Fletcher noted that the context was "a time when thousands
of Americans were still dying every week, and there was a hope
that getting everyone vaccinated could stop the pandemic. And
there was a concern that Americans were getting their news about
the vaccine from these platforms, and the platforms were
promoting - not just posting, but promoting - bad information."
"I know the objectives were good," Alito responded, but said
he doubted the federal government treated print media the same
way.
Conservative Justice Brett Kavanaugh suggested such
interactions might not be unusual. There are "press people
throughout the federal government who regularly call up the
media and berate them," Kavanaugh said.
Fletcher said the challengers in the case lacked the proper
legal standing to bring the lawsuit in the first place "because
they have not shown an imminent threat that the government will
cause a platform to moderate their posts in particular."
Aguinaga said the administration's actions were "not using
the bully pulpit at all. That's just being a bully."
Liberal Justice Ketanji Brown Jackson described a
hypothetical scenario in which social media platforms allowed
posts challenging children to jump out of windows at
increasingly heights, with serious injuries and deaths
resulting.
"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 Aguinaga.
Government officials could call the platforms to say it is a
problem, Aguinaga responded. But the moment that the government
presses them to take down the posts, "that is when you are
interfering with third-party speech rights," Aguinaga added.
The justices in February heard arguments in another social
media case over whether to uphold laws passed in Texas and
Florida that would restrict the content moderation practices of
platforms.
In the case argued on Monday, the plaintiffs sued officials
and agencies across the federal government, including in the
White House, FBI, surgeon general's office, Centers for Disease
Control and Prevention and the Cybersecurity and Infrastructure
Security Agency.
Louisiana-based U.S. District Judge Terry Doughty issued a
preliminary injunction in July 2023 that barred an array of
government officials from communicating with platforms regarding
content moderation, such as urging the deletion of certain
posts.
The New Orleans-based 5th U.S. Circuit Court of Appeals
subsequently narrowed that order. The Supreme Court put the
injunction on hold pending the review of the case by the
justices.
The Supreme Court's ruling is expected by the end of June.