In a major case testing the role of the First Amendment in the internet age, the U.S. Supreme Court on Monday hears arguments focused on the federal government’s ability to combat what it sees as false, misleading or dangerous information online.
Last September, the 5th U.S. Circuit Court of Appeals, the most conservative federal appeals court in the U.S., issued a broad ruling that barred key government officials from contacts with social media companies. Among the personnel targeted in the order were officials at the White House, the Centers for Disease Control and Prevention, the Office of the Surgeon General, the FBI and an important cybersecurity agency.
The appeals court said that individuals at those agencies likely violated the First Amendment by seeking to coerce social media platforms into moderating or changing their content about COVID-19, foreign interference in elections and even Hunter Biden’s laptop. The Supreme Court has put that ruling on hold while it examines the tricky issues in the case.
The facts of the case
The plaintiffs in the lawsuit are two states, Missouri and Louisiana, and five individuals, including vaccine opponents, who either were banned from some internet platforms at the height of the COVID-19 pandemic or whose posts, they say, were not prominently featured on social media sites such as Facebook, YouTube and X, formerly known as Twitter.
The Biden administration notes that under established First Amendment precedent, the government itself is entitled to express its views and to try to persuade others. As the government says in its brief, “A central dimension of presidential power is the use of the office’s bully pulpit to seek to persuade Americans—and American companies—to act in ways that would advance the public interest.”
The administration’s opponents counter that the bully pulpit “is not a pulpit to bully.” Jenin Younes, who represents the individuals who claim they were censored, argues that the government is essentially using social media companies as proxies to censor speech. And that, she contends, is unconstitutional state action. “We’re talking about the government going after all major platforms and trying to get them to censor … entire points of view,” she says.
The government notes that officials in both Republican and Democratic administrations have interacted regularly with social media companies. Indeed, from the beginning of the pandemic in the Trump administration, the companies themselves reached out to government health agencies for guidance on what was and was not reliable medical information.
Former Obama White House counsel Kathryn Ruemmler said she was particularly struck in reading the lower court opinions in this case because “there really was no recognition … that the vast majority of these communications between the government officials and the social media companies related to a global health crisis.”
“If you think about what is the purpose of the government, why do governments exist? It’s really to protect the health and safety and welfare of its citizens,” she said during a panel discussion at New York University’s School of Law.
How the government interacts with social media companies
The government makes similar arguments about the FBI and other agencies’ dealings with social media companies. Former FBI general counsel Andrew Weissmann notes that private companies and the government typically benefit from this sort of back-and-forth.
“Let’s say that somebody from the Department of Defense alerts you to information about a terrorist group that is identifying” the location and address of a State Department employee abroad and calling for violence against that individual. Typically, Weissman says, “depending on the imminent danger,” the FBI general counsel would alert the social media company and have a conversation that would go something like this: “I wanted to flag for you” something that “seems to us it violates your policy. Obviously that’s for you to decide, but you can understand why … there is a grave concern on our part.”
The response, most of the time, says Weissmann, is that the social media company is grateful for the information and often takes down the post because it does violate company policy but was missed by the company’s algorithms. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.
Was speech censored?
That is hardly the picture painted by the other side in this case. They claim their speech was censored. Two of the plaintiffs are epidemiologists who were advocates of exposing most people to get COVID-19 in order to establish herd immunity instead of imposing lockdowns, masks and other steps taken by both the Trump and Biden administrations. The CDC has argued that there is no such thing as herd immunity with a virus like the coronavirus that causes COVID-19, which has constantly morphed and mutated.
But the plaintiffs in the case have produced dozens and dozens of quotes from government emails that they say prove the government’s coercive behavior. “When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. And the result of that pressure was censoring certain viewpoints,” contends lawyer Younes.
That’s “kind of silly,” says former White House counsel Ruemmler, who notes that the president can’t remove existing legal protections for social media companies. Only Congress can do that. Colin Stretch, former general counsel for Facebook, agrees that the idea of social media platforms bowing to government officials is outlandish.
“These are big companies. They don’t scare easy,” he says, adding that there always are competing political imperatives in public policy. “That’s life in the big leagues,” he said at NYU.
A forceful government response
The Biden administration, for its part, rebuts the plaintiffs’ coercion allegations in unusually forceful terms. “When I looked at the government’s brief, they don’t use the L-word, the ‘lying’ word, but they do everything but,” observes former FBI counsel Weissmann.
To cite just one example, the government rebuts the coercion claim drawn by the lower court from a White House email to Facebook. “Are you guys f***ing serious?” the email says, adding, “I want an answer on what happened here and I want it today.” Sounds bad, the government says, until you learn that the “admittedly crude email” concerned “a technical problem affecting the President’s own Instagram account—it had nothing to do with moderating other users’ content.”
Beyond the enormous factual disputes in the case, there are basic disagreements about how the courts should treat social media companies under the First Amendment and whether those regulatory policies should be made by the Supreme Court or Congress. “There is no clear partisan line” in Monday’s case, observes NYU law professor Ryan Goodman. And you don’t have to be a genius to see that some politicians have a convenient way of switching sides, depending on the content of the speech at issue.
Missouri Attorney General Andrew Bailey, for instance, brought this case accusing the Biden administration of “arguably … the most massive attack against free speech in United States history.” But at the same time, he threatened legal action against Target for selling LGBTQ-themed T-shirts and other merchandise as part of a Pride campaign.
What the social media companies say
None of the social media companies are parties in Monday’s Supreme Court case, but they continue to assert that like other media companies, their speech and their choices of what to allow on their platforms are protected by the First Amendment. Those challenging that status contend that social media companies are more like utilities; they are hosts to other people’s opinions and thus don’t have the same First Amendment protections that newspapers and broadcasters have.
Presidents of both parties and members of Congress can and do say plenty of nasty things about social media companies in public; it’s the private communications that make critics suspicious, according to Jameel Jaffer, executive director of the Knight First Amendment Institute.
“It might be naive to expect the social media companies to be reliable proxies for the speech interests of their users,” he said at NYU. Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. It sounds simple, but as Jaffer observes, “applying that rule is much more difficult than stating what the rule is.”
Just where the Supreme Court justices stand on this or other social media questions before the court this term is unclear. But in this case, the court’s three most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would not have paused the lower court’s decision while the case is litigated in the high court. They would have let it take effect.
A separate First Amendment case
After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The National Rifle Association sued the former head of New York state’s Department of Financial Services.
The NRA charged that during an agency investigation into so-called “murder insurance,” the Department of Financial Services violated the NRA’s free speech rights by issuing letters and news releases that dissuaded financial institutions from doing business with the gun rights advocacy group. “Murder insurance” is the derogatory term for insurance that covers the costs of using firearms to shoot another person, and it is illegal in New York. The 2nd U.S. Circuit Court of Appeals dismissed the NRA’s complaint, concluding that the news releases and letters were appropriate government speech, and the NRA then appealed to the Supreme Court.