Pinned
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.
Justice Amy Coney Barrett, appointed by former President Donald Trump, offered the scenario of Louisiana state officials being doxxed, with their private information being posted online. Some people then called for harming the officials, but the posts fell short of being illegal in and of themselves.
The FBI saw the posts and alerted social media outlets. The FBI says the posts are “significantly threatening,” Justice Barrett said in her hypothetical. Should the court block the FBI from doing that?
“I’m a purist on the First Amendment, so my answer would be ‘yeah,’” Louisiana Solicitor General Benjamin Aguinaga responded.Justice Barrett pushed back, asking if the official was aware of how often the FBI engages in that type of communication.
“That’s why I have my backup answer, Your Honor, which is, if you think there needs to be more, the FBI absolutely can identify certain troubling situations like that for the platforms and let the platforms take action,” Mr. Aguinaga said.
The respondents offered their take following oral arguments, offering an overall positive opinion of how the court might view the case.
Attorneys General Liz Merrill of Louisiana and Andrew Bailey of Missouri both told The Epoch Times they felt positive about the case and how the justices reacted.
"I am cautiously optimistic that we will have a majority of the court that lands where I wholeheartedly believe they should land, and that is in favor of protecting speech," Ms. Merrill said.
The Supreme Court today heard arguments today on whether the Biden administration violated the First Amendment by pressuring social media companies to censor posts on COVID-19 and the 2020 election that officials deemed as misinformation.
The court appeared wary of arguments by the respondents that the White House is wholesale prevented under the Constitution from recommending to social media companies to remove posts it considered harmful, in cases where the suggestions themselves didn't cross the line into "coercion."
Deputy Solicitor General for the U.S. Brian Fletcher argued that the White House's communications with news media and social media companies regarding the content promoted on their platforms do not rise to the level of governmental “coercion,” which would have been prohibited under the Constitution.
In his rebuttal at the end of arguments, Deputy Solicitor General for the U.S. Brian Fletcher asserted that, if the respondent's case were found to be an accurate one, it would constitute a "massive attack on free speech" and a "coordinated censorship campaign," as the lower courts termed it.
"I want to be clear: if those things had happened, they would be reprehensible," Mr. Fletcher admitted.
“It would be a huge problem. But we would think that before validating those sorts of charges against senior government officials and career employees spanning two different administrations, the lower courts would insist on our rigorous analysis of the facts and the law, and with all respect to the lower courts, we don't think that's happened here.
Justice Ketanji Brown Jackson raised the opinion that some say “the government actually has a duty to take steps to protect the citizens of this country” when it comes to monitoring the speech that is promoted on online platforms.
“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.
“So can you help me because I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective.
In response to a question from Brett Kavanaugh, an associate justice of the Supreme Court, Louisiana Solicitor General Benjamin Aguiñaga said the "government is not helpless" when it comes to countering factually inaccurate speech.
Precedent before the court suggests the government can and should counter false speech with true speech, Mr. Aguiñaga said.
"Censorship has never been the default remedy for perceived First Amendment violation," Mr. Aguiñaga said.
Justice Elena Kagan was skeptical about the extent to which the government could have influenced or compelled Facebook to remove certain posts from its platform.
“Until you can show that there's something about overbearing the platform's will, which, you know, seems sort of hard to overbear Facebook ... how do you say it's the government rather than Facebook?“
Mr. Aguiñaga responded, “You could say the same thing about how do you know it's Facebook, not the government. How do you know it's the government, not Facebook, you can ask it either way.”
Respondent’s attorney, Benjamin Aguiñaga, was questioned by Sonia Sotomayor about the “disinformation dozen,” which was a group of people the government thought was responsible for the majority of the “health misinformation” on social media.
“Each of our individual plaintiffs specifically identifies the fact that they follow members of the so-called disinformation dozen,” Mr. Aguiñaga said.
“When the government, or when the platforms here in response to the pressure, are taking down contact and accounts related to those individuals called the disinformation dozen, that is necessarily impacting our plaintiff's right, to engage with their speech."
Ketanji Brown Jackson, an associate justice of the Supreme Court, asked Louisiana Solicitor General Benjamin Aguiñaga, a hypothetical question about the respondent's viewpoint on a harmful social media trend.
Justice Jackson said if there was a "teen challenge that involves teens jumping out of windows at increasing elevations" and the government tried to suppress the publication of said challenge on social media, would that be a problem?
Mr. Aguiñaga said that would be a terrible scenario, but it has nothing to do with the matters the court should be considering in the case.
Justice Amy Coney Barrett asked Mr. Aguiñaga if he was “articulating different standards, depending on a different legal standard, depending on different factual circumstances.”
“For example, when Justice Kagan gave you the hypothetical of pressure being placed on the New York Times or The Washington Post, not to run a particular Op-Ed, it seemed like you backed off and several significant encouragement wouldn't be enough there because the person who wrote the Op Ed can go to another news outlet.
“You also made the point that this is just different because social media is such a concentrated industry, which is the point that Justice Gorsuch was asking Mr. Fletcher about.
Elena Kagan, an associate justice of the Supreme Court, asked Louisiana Solicitor General Benjamin Aguiñaga if the White House calling the Washington Post or another newspaper in the hope of planting a story was equivalent to coercion. She called it a common practice.
"I don't know how that we would get prospective injunctive relief based on a fleeting, offhand reach out from the White House," Mr. Aguiñaga said in reply.
Mr. Aguiñaga implied that Ms. Kagan was driving at the suggestion that the government was merely making suggestions akin to anonymous tips to reporters at a newspaper. In his view, it's not the same issue. The government wasn't making suggestions or offering news tips; it was telling social media companies what was and wasn't acceptable speech.
Justice John Roberts asked the respondents’ attorney Benjamin Aguiñaga if the non-monolithic nature of the government would “dilute the concept of coercion.”
“I suspect when there's pressure put on one of the platforms or certainly one of the other media outlets, they 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 is trying to do with this.
“It's not monolithic. And that has to dilute the concept of coercion significantly, doesn't it?” Mr. Roberts asked Mr. Aguiñaga.
Opening up the respondent's side of the argument, Louisiana Solicitor General Benjamin Aguiñaga said the case record reveals "unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans."
Mr. Aguiñaga said the previous court ruling characterized the government's actions during the period under question in the case as "the most massive attack against free speech in American history."
"The government's levers of pressure are anathema to the First Amendment," Mr. Aguiñaga said.
Mr. Fletcher listed a number of ways in which the government has interactions with the media over its news content and with social media platforms regarding their content.
He mentioned children’s mental health care, antisemitic and Islamophobic speech, and “issues where the White House, the Surgeon General, [and] others might want to make their views known to use the bully pulpit to call on the platforms to do more.”
Mr. Fletcher also described efforts to protect national security, such as the FBI briefing social media platforms on “foreign threats or about terrorist activity happening on those platforms.”
Neil Gorsuch, an associate justice of the Supreme Court, asked Brian Fletcher, principal deputy solicitor general for the U.S., about how the concentration of social media companies and diversity of the media affects his case.
Specifically, Mr. Gorsuch asked if concentration makes coordination between the government and private entities easier.
"I think that concerns about concentration in the industry go more to the potential effects of coercion, if it happened, that about whether or not coercion happened at all," Mr. Fletcher said.
In response to Justice Clarence Thomas, Mr. Fletcher says the government can “persuade” a private party, like a social media company, to do what a “private party is lawfully allowed to do.”
“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.
For example, Mr. Fletcher said, “after the October 7 attacks in Israel, a number of public officials called on colleges and universities to do more about anti-semitic hate speech on campus.”
Justice Samuel Alito questioned Deputy Solicitor General Brian Fletcher about the government's actions toward social media companies, questioning the partnership referenced by government officials.
The repeated meetings between government officials and social media platform employees could have been seen as irregular, according to Justice Alito.
"I cannot imagine federal officials taking that approach to print media representatives … what do you think the reaction would be?" The Justice went on with his question, saying he thinks the way government officials could have gone as far as they did to interact with social platforms is "because the federal government has got section 230 and antitrust in its pocket … And so it's treating Facebook and these other platforms like their subordinates.
Neil Gorsuch, an associate justice of the Supreme Court, asked Brian Fletcher, principal deputy solicitor general for the U.S., about a statement President Joe Biden made about "killing people."
Mr. Gorsuch asked if such statements, such as one implying social media companies are "responsible for killing people" if they don't change their policies, are coercive.
"I just want everyone to look in their mirror ... and imagine what would happen if this misinformation was going to their opponents," Mr. Fletcher replied. "I think it's clear that this was exhortation, not threat."
Mr. Fletcher disputed the question of “traceability” in relation to “imminent threat” from the government’s censorship of social media posts.
“We haven't disputed that [social media posters] suffered that injury,” after their posts were censored, “We've disputed the traceability question and then the redress of okay question.”
He specified that “traceability is basically a question of causation,” in other words, that the injury from censorship can be directly “traceable to the government’s actions.”
Sonia Sotomayor, associate justice of the Supreme Court, asked Brian Fletcher, principal deputy solicitor general for the US, to explain how an injunction by the U.S. Court of Appeals for the Fifth Circuit is harmful to the government. The Supreme Court has stayed the lower court's injunction, for now.
Mr. Fletcher responded that the injunction is not currently harming the government, but it can in the future.
For example, the FBI would be limited in its enforcement, investigation, and prosecution of certain threats and harmful speech made on social media by domestic and foreign actors, Mr. Fletcher said.
Justice Clarence Thomas asked Deputy Solicitor General for the U.S. Brian Fletcher if his argument was "the only way to look at this case."
Mr. Fletcher responded, saying that there were two ways to view the type of case before the court and their case hinges on it being seen as a "coercion inquiry."
The attorney said, "You can think of that as an aspect of state action because when private parties are held to act … they become state actors. We think that's the right way to think about this case."
Brian Fletcher, Principal Deputy Solicitor General for the U.S., opens arguments for the Biden administration.
Mr. Fletcher said the plaintiffs “have not shown an imminent threat that the government will cause a platform to moderate their posts.”
He said the Fifth Circuit “mistook persuasion for coercion” when filing a previous injunction in the case.
At a free speech rally outside the Supreme Court, Dr. Pierre Kory of the Frontline COVID-19 Critical Care Alliance spoke about his experience facing censorship and retribution from the medical industry for opposing the “consensus” about the virus.
Before COVID, Dr. Kory said, he didn’t know much about the extent of censorship in media—then he experienced it firsthand.
“I've been censored in every way, shape, and form,” Dr. Kory said. “I think most of this country has no idea how much censorship is occurring.”
The fate of free speech in the United States hinges on the outcome of the two cases being considered by the court today, according to Jeffrey Tucker of the Brownstone Institute.
Speaking to The Epoch Times by phone ahead of the oral arguments today, Mr. Tucker explained that since 2016, but especially since the onset of COVID-19 in 2020, governmental and nongovernmental organizations (NGOs) have constructed “an extremely well-developed and vast … censorship industrial complex.”
Involved in this industry, Mr. Tucker said, are the government and social media companies themselves, but also NGOs and universities.
The U.S. Supreme Court will hear oral arguments in two landmark freedom of speech cases this morning.
First, SCOTUS will hear arguments at 10 a.m. ET in Murthy v. Missouri which alleges that Biden administration officials engaged in what amounts to government-led censorship-by-proxy by pressuring social media companies to take down posts or suspend accounts over content officials deemed as false or misleading.
Specifically, these allegedly censored posts related to the COVID-19 pandemic, the lab leak theory, the safety and efficacy of COVID-19 vaccines, the 2020 election, Hunter Biden’s laptop, and other topics that were marked as disinformation or misinformation, according to plaintiffs.
The U.S. Supreme Court will soon hear oral arguments in a case that concerns what two lower courts found to be a “coordinated campaign” by top Biden administration officials to suppress disfavored views on key public issues such as COVID-19 vaccine side effects and pandemic lockdowns.
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