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 hypotheticals are important but the case being dealt with concerns the bureau taking actions with regard to Hunter Biden’s laptop computer and other issues for which there is no emergency, he added.“That’s judge kind of falling back on ‘well, this case is different, this case is different, and so a different legal standard should apply. But what we say in this case matters for other cases too,” Justice Barrett said.
“It does. ... But if what the FBI is doing is trying to persuade an intermedia speech intermediary to take down a private third party speech, I mean, that is that is covered by the plain text of Norwood. And that’s, I mean, an abridgment of speech,” Mr. Aguinaga. In Norwood v. Harrison, the Supreme Court found that “A state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Justice John Roberts, appointed by former President George W. Bush, later offered another hypothetical involving the Environmental Protection Agency (EPA) as he questioned Mr. Aguinaga.
Mr. Aguinaga’s reply was interrupted by Justice Kagan, who said that law enforcement agencies find terrorist speech on social media and go to platforms to warn them. “The government can’t do that?” she asked.
“The government absolutely can do that,” Mr. Aguinaga. “Terrorist activity, criminal activity that is not protected speech? Absolutely.”Justice Kagan, appointed by former President Barack Obama, then said the speech might be protected by the Constitution.
“If it’s First Amendment speech, protected speech, I think we’re an entirely different world,” Mr. Aguinaga said. When platforms take down such speech under pressure from the government, “that’s a square First Amendment issue.”
Justices Kagan and Brett Kavanaugh, an appointee of President Trump, both raised how government officials contact news organizations regarding sensitive stories.
“This still happens now. Decades ago, it happened all the time, which is, somebody from the White House got in touch with somebody from the Washington Post, and said ’this will just harm national security.‘ And the Washington Post said, ’okay, whatever you say,'” Justices Kagan said. She added later, “Was that coercion?”
“If there’s a national security interest, maybe the government can satisfy strict scrutiny in that circumstance. What I would also say is we probably wouldn’t have a lawsuit based on that because I don’t know how that we would get prospective injunctive relief based on a fleeting, offhand, reach out from the White House,” Mr. Aguinaga said.
He added shortly after that in his view, the government can ask platforms to attach notes to purportedly false information but once it pushes for the removal or diminishment of posts containing the information, constitutional issues arise.
Justice Kavanaugh imagined posts offering inaccurate information about what U.S. troops are doing. “Why should you be publishing that inaccurate information?” he asked.
“The North Star for the government in that situation is more speech. Publish the true speech that they think should counter what they view is false speech,” Mr. Aguinaga said. “The government is not helpless here. It has tools ... at its disposal, and censorship has never been the default remedy for a perceived First Amendment violation.”
Lower courts blocked President Joe Biden’s administration from working with Big Tech firms to censor posts, but the Supreme Court, when in 2023 agreeing to hear the case, stayed those orders.
The Supreme Court wrapped up oral arguments in the case, Murthy v. Missouri, on Monday and will hand down a ruling in the future.
