WASHINGTON — A majority of Supreme Court justices on Monday appeared highly skeptical about claims the Biden administration crossed the line from persuasion to coercion when it told social media platforms to remove problematic content.
At issue is an injunction imposed by a federal judge, currently on hold, that would limit contacts between government officials and social media companies on a wide range of issues.
During oral arguments, justices across the ideological spectrum questioned whether the conduct of government officials was unlawful and whether plaintiffs that brought the lawsuit could even show they were directly harmed. Among the issues raised was the lack of evidence that government officials threatened punitive action if the social media companies failed to cooperate.
The case was one of two the court heard on Monday about the practice known as “jawboning,” in which the government leans on private parties to do what it wants, sometimes with the implicit threat of adverse consequences if demands are not met. Those challenging the government actions say that in each case there was a violation of the Constitution’s First Amendment, which protects free speech rights.
The second case involves claims that a New York state official inappropriately pressured companies to end ties with the National Rifle Association, the leading gun rights group.
In the social media case, Republican attorneys general in Louisiana and Missouri, along with five social media users, filed the underlying lawsuit alleging that U.S. government officials went too far in putting pressure on platforms to moderate content. The individual plaintiffs include Covid lockdown opponents and Jim Hoft, the owner of the right-wing website Gateway Pundit.
The lawsuit makes various claims relating to activities that occurred in 2020 and before, including efforts to deter the spread of false information about Covid and the presidential election. Donald Trump was president at the time, but the district court ruling focused on actions taken by the government after President Joe Biden took office in January 2021.
Several justices questioned whether the nature of the communications was problematic, with liberal Justice Elena Kagan noting that officials sometimes have fraught communications with journalists.
“This happens literally thousands of times a day in the federal government,” she said.
Chief Justice John Roberts, a conservative, similarly pointed out that the federal government is “not monolithic,” meaning that a complaint from one department is not necessarily a sign that another agency would take action if a post was not removed.
“That has to dilute the concept of coercion significantly doesn’t it?” he said.
Justice Amy Coney Barrett, another conservative, indicated that the argument made by Louisiana Solicitor General Benjamin Aguiñaga that mere encouragement by the government could constitute unlawful conduct “would sweep in an awful lot” of routine activity.
Liberal Justice Ketanji Brown Jackson asked Aguiñaga whether, under his interpretation of the law, it could be potentially unlawful for the government to ask social media platforms to take down a viral post encouraging teens to jump out of windows.
“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 said.
Aguiñaga said the government’s conduct could cross the line if it goes beyond expressing concerns about content and then asks for posts to be removed.
Conservative Justice Brett Kavanaugh also appeared skeptical of the plaintiffs’ arguments that there was coercion involved.
“What do you do with the fact that the platforms say no all the time to the government?” he said.
The justice who appeared most sympathetic to the plaintiffs was conservative Samuel Alito.
The evidence showed that White House officials and others suggested they were on the “same team” as the social media companies, demanded answers and “cursed them out” when they did not get the responses they wanted, Alito said.
“There is constant pestering of Facebook and some of the other platforms,” he added.
Alito also referred to reporters present in the courtroom.
“I cannot imagine federal officials taking that approach to the print media representatives over there. If you did that to them, what do you think the reaction would be?” he said.
Last July, Louisiana-based Judge Terry Doughty barred officials from “communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The New Orleans-based 5th U.S. Circuit Court of Appeals narrowed the scope of Doughty’s injunction. But the appeals court still required the White House, the FBI and top health officials not to “coerce or significantly encourage” social media companies to remove content the Biden administration considers misinformation.
When agreeing to hear the case, the Supreme Court in October blocked the appeals court ruling, with three conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — noting they disagreed with that decision.
In the NRA case, the gun rights group claims that its free speech rights were violated by the actions of Maria Vullo, then-superintendent of the New York Department of Financial Services.
Based questions asked during those oral arguments, the court could find that Vullo inappropriately pressured insurance companies to end their business relationships with NRA.
Vullo’s office had been investigating insurance companies that the NRA had worked with to provide coverage for members. The NRA alleged that Vullo, in meetings with insurance companies, made “back channel threats that they cease providing services to the NRA.”
Speaking out after the 2018 school shooting in Parkland, Florida, in which 17 people were killed, Vullo also urged insurance companies and banks to reconsider any relationships they had with gun rights-affiliated groups.
Alito indicated that the only difference between the two cases is that Vullo was not subtle enough in her interactions with the companies.
“Does that mean that really the New York officials could have achieved what they wanted to achieve if they hadn’t done it in such a ham-handed manner?” he asked.
Another key distinction between the two cases is that the Biden administration, while defending its own conduct in the social media cases, filed a brief mostly backing the NRA in the other case, saying it had made a plausible free speech allegation.
Justice Department lawyer Ephraim McDowell told the justices that in the NRA case there was a “specific coercive threat” that was not present in the social media case.
The NRA is appealing a 2022 ruling by the New York-based 2nd U.S. Circuit Court of Appeals, which said Vullo’s actions did not constitute unlawful conduct.
Vullo argued in her defense that it was part of her job to warn companies about the “reputational risk” of doing business with the NRA.
The case attracted additional attention after the American Civil Liberties Union, which often backs liberal causes, signed on to represent the NRA. The ACLU said that while it disagrees with the NRA’s positions, it would defend the gun rights group’s right to speak.