Social media efforts eyed
Justices wary of push to limit government interactions with firms
WASHINGTON — An effort by two Republican-led states to limit the Biden administration’s interactions with social media companies met a rocky reception at the Supreme Court on Monday, with several justices questioning the states’ legal theories and factual assertions.
A majority of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.
Justices Brett Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage were, they said, part of a valuable dialogue that was not prohibited by the First Amendment.
Members of the court also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five individuals — had suffered the kind of injury that gave them standing to sue. They also suggested a broad injunction prohibiting contacts between many officials and the platforms was not a proper remedy in any event.
Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your brief,” she told J. Benjamin Aguiñaga, Louisiana’s solicitor general. “You omit information that changes the context of some of your claims.” Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”
The case was the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.
The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics such as coronavirus vaccines and claims of election fraud. Last year, a federal appeals court limited such interactions.
The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.
Those four cases, along with the one Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.
Brian Fletcher, the principal deputy solicitor general for the Biden administration, argued the government has a right to speak to social media companies in an effort to persuade them to choose to remove or curtail certain matters, so long as it does not coerce them. He said the test should be whether the government makes threats.
Aguiñaga said the government was coercing social media platforms into taking down posts, amounting to government censorship. He addressed a key issue in the government content moderation efforts of the past few years — what began as attempts to address foreign meddling and disinformation moved to cover speech from Americans in 2020, over an election and a pandemic.