Supreme Court justices seemed skeptical of state arguments on March 18 that the federal government was wrong to communicate with social media platforms about public health issues during the recent pandemic.
At the same time, during oral argument in Murthy v. Missouri, the states argued that the federal government strong-armed social media companies into censoring disfavored views on important public issues such as side effects related to the COVID-19 vaccine and the pandemic lockdowns. Applying this kind of pressure violates the First Amendment, the states argued.
Dr. Vivek Murthy is the U.S. surgeon general. The state of Missouri and other parties sued the federal government for alleged censorship by pressuring social media companies to suppress certain content.
Conservatives and others have complained that social media censors information about transgender issues, COVID-19, and the 2020 election. They were particularly concerned about coverage of Hunter Biden’s laptop computer that contained information they say might have harmed President Joe Biden’s election campaign had it been allowed to circulate freely.
Brian Fletcher, principal deputy solicitor general of the United States, acknowledged that the government “may not use coercive threats to suppress speech” but argued it was “entitled to speak for itself by informing, persuading or criticizing private speakers.”
There is a “fundamental distinction between persuasion and coercion,” he said.
In this case, the states of Missouri and Louisiana, plus five individuals, are trying to use the federal courts “to audit all of the executive branch’s communications with social media platforms,” Mr. Fletcher said.
“That problem has infected every step of this case. 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,” he said.
Justice Neil Gorsuch asked Mr. Fletcher if President Biden’s statement that social media companies are “responsible for killing people” if they don’t alter their policies could be considered coercive.
Mr. Fletcher said it wasn’t coercive.
“I just want everyone to look in their mirror ... and imagine what would happen if this misinformation was going to their opponents,” the lawyer said. “I think it’s clear that this was exhortation, not threat.”
Mr. Fletcher told Justice Clarence Thomas that the government is allowed to “persuade” private parties.
“I’m saying that when the government persuades a private party not to distribute or promote someone else’s speech, that’s not censorship—that’s persuading a private party to do something that they’re lawfully entitled to do and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn’t do,” he said.
As an example, the attorney said that “after the October 7 [2023] attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus.”
“And we think that’s what the government is doing when it’s saying to these platforms, your platforms and your algorithms, and the way that you’re presenting information is causing harm, and we think you should stop. ... You really don’t see any difference between the government coordinating with the platforms to exclude other speech and persuading the platforms to do this to not engage or permit other speech,” he said.
“What happened is on the persuasion side of the line,” as opposed to a violation of the First Amendment, Mr. Fletcher said.
Justice Samuel Alito pushed back, suggesting that when the federal government approached social media companies, the two sides were not equal in power.
Emails from the White House and other federal officials and social media platforms showed there was “constant pestering of Facebook and some of the other platforms,” the justice said.
Justice Alito paraphrased government officials’ communications with social media platforms: “Why don’t you tell us everything that you’re going to do so we can help you and we can look it over?”
The government also has Section 230 of the Communications Decency Act and antitrust “in its pocket.” The government has “these big clubs available ... to it, and so it’s treating Facebook and these other platforms like they’re subordinates,” he said.
Louisiana Solicitor General Benjamin Aguinaga said that “government censorship has no place in our democracy.”
The evidence shows that there was “unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans,” he said.
The federal district court described the government’s behavior during the period examined as “the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.”
“The government’s levers of pressure are anathema to the First Amendment,” Mr. Aguinaga said.
This was not a case of the government accessing a “bully pulpit” to rally Americans to a cause—this was the government “just being a bully,” he said.
“The government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms in backrooms shielded from public view is not using the bully pulpit at all,” the attorney said.
Justice Ketanji Brown Jackson spoke of the dangers of disinformation being allowed to propagate on social media.
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Justice Jackson told Mr. Aguinaga.
“Some might say that the government actually has a duty to take steps to protect the citizens of this country and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.”
The Supreme Court is expected to rule on the case by June.
