Persuasion or coercion?

No one in government seems happy with Big Tech, but social media platforms tend to bear the brunt of politicians’ disfavor.

Democrats and the Biden administration accuse the platforms of allowing the spread of vaccine misinformation, hate speech, and white nationalism. Republicans and the previous Trump administration have blamed them for censorship of conservative personalities and websites. Congressional committees have summoned company leaders to hearings and levied pointed criticism. But so far, this has not led to reforms.

But a case argued before Supreme Court justices Monday may change that. In Murthy v. Missouri, the attorneys general of Missouri and Louisiana, along with a group of social media users, sued the Biden administration over alleged censorship. They contend the government colluded with social media companies to deprive users of their First Amendment rights.

U.S. Chief District Judge Terry Doughty of Louisiana issued an order in July 2023 restricting the federal government’s ability to communicate with social media companies. “Using the 2016 election and the COVID-19 pandemic, the government apparently engaged in a massive effort to suppress disfavored conservative speech,” concluded Doughty, a Trump appointee. At one point, he accused the government of assuming “a role similar to an Orwellian ‘Ministry of Truth.’”

A federal appeals court later largely upheld Doughty’s order limiting contacts by a number of government agencies with the companies, but the Supreme Court put a hold on the order until it could resolve the case.

No one arguing Monday took issue with the need for communication between governmental officials and the ubiquitous platforms. The difficult question for the justices is whether governmental officials crossed the line from merely persuading to coercing company content moderators.

But the initial issue, argued Deputy Solicitor General Brian Fletcher, who represented the Biden administration, was whether the challengers even had a right to seek relief in the first place.

“Respondents don’t have standing at all because they have not shown an imminent threat that the government will cause a platform to moderate their posts in particular,” Fletcher told justices in his opening remarks. Not only that, they failed to prove that government actions actually caused the platforms to restrict their speech, he said.

Justice Samuel Alito pointed to one challenger, Jill Hines, whose Facebook account was restricted at the time the complaint was filed because she reposted a post from presidential candidate Robert F. Kennedy Jr. that allegedly included vaccine misinformation. “So why isn’t that sufficient to show a threat of—an imminent threat of—future injury?” he asked.

Fletcher agreed that Hines was injured in some sense but denied that the injury was traceable to governmental action, despite earlier rulings from both the district court and appeals court. “[Respondents] did this blunderbuss approach where they said the government is talking to the platforms about moderation and the platforms are moderating content,” Fletcher countered. “But the platforms were moderating this content long before the government was talking to them.”

After considering this question, the justices finally settled into the crux of the case. Did government officials cross the line from merely attempting to persuade platform censors to flag or remove posts to threatening governmental action if the platforms did not take action? That’s where conservative justices bristled.

Some of the ire centered on threats to amend Section 230 of the Communications Decency Act, a federal law that prevents internet providers from being held liable for posts by users and which largely allowed the internet to flourish. Tech companies argue that removing immunity as a response to the companies’ content moderation would effectively shut down the medium due to liability risks.

In March 2022, Twitter shut down the account of the Christian satire website The Babylon Bee after it posted the headline, “The Babylon Bee’s Man of the Year Is Rachel Levine.” Levine, a Biden administration official, is a biological man who identifies as a woman. Twitter later restored the account.

“The only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and it’s . . . got these big clubs . . . available to it, and so it’s treating Facebook and these other platforms like they’re subordinates,” said Alito. “Would you do that to The New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?”

Justice Neil Gorsuch picked up on Alito’s line of questioning, signaling that he too was interested in whether the threat of antitrust action to break up the companies or limiting their immunity under Section 230 would constitute coercion. But he went further.

“How about saying you’re killing people? Could that be coercion in some circumstances, that if you don’t change your moderation policies, you’re—you’re responsible for killing people?” he asked, referring to a comment President Joe Biden made to reporters in 2021. Fletcher admitted that it was a “much harder” issue but countered that Biden’s office later clarified his off-the-cuff statement, calling it “exhortation, not threat.”

Louisiana Solicitor General Benjamin Aguiñaga defended the appeals court ruling, pointing to a record that he said showed unrelenting pressure on social media platforms by the government. “The government’s levers of pressure are anathema to the First Amendment,” he said.

But liberal justices challenged that argument. Justice Elena Kagan focused on the challenge of linking actions taken by the platforms with government threats. “I guess if you’re going to use standard ideas about traceability and redressability . . . I don’t see a single item in your briefs that would satisfy our normal tests,” said Kagan.

Justice Ketanji Brown Jackson highlighted her concern that the test Aguiñaga was suggesting—one which focused not only on coercion but on more subtle encouragement by a government official to censor—might undercut important governmental objectives. “So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” she said.

Justice Gorsuch seemed concerned with articulating the scope of the test for determining whether the government exercised coercion. “I just want to know what [is] my yardstick I’m supposed to measure these allegations against,” he told Aguiñaga.

After hearing Monday’s arguments, Eugene Volokh, a UCLA law professor, doubted the states and other challengers would prevail. “My sense was that most justices were skeptical about the argument that the government violates the First Amendment simply by noncoercively urging and ‘substantial[ly] encourag[ing]’ platforms to restrict speech,” wrote Volokh.