Supreme Court Looks Likely To Hand Biden a Win in Landmark Social Media Censorship Case

The Supreme Court, in a major digital-age First Amendment case, appeared sympathetic to the Biden administration in arguments Monday over the extent to which the federal government can pressure social media companies to remove content it deems “misinformation.”At issue in Murthy v. Missouri — brought originally as Missouri v. Biden in 2022 by Missouri, Louisiana, and five individuals — is whether the Biden administration violated the First Amendment by coercing social media platforms to take down viewpoints about Covid masking, vaccines, and the 2020 election. A major dispute in the case is whether the actions of the private platforms — at the behest of the government — are enough to constitute state action. Monday’s arguments come in a term in which the Supreme Court has taken up several landmark social media disputes, including arguments over laws in Florida and Texas preventing Big Tech from censoring views. The court also set standards on Friday for when public officials can block unwelcome commenters on their social media accounts. In Monday’s arguments, a majority of the justices appeared appeared to favor the Biden administration, with Justice Samuel Alito appearing the most supportive of the states’ position. A portion of the arguments centered around a 1963 precedent in Bantam Books v. Sullivan, in which Rhode Island created a commission to investigate obscene books and report distributors to the police. The court held that informal censorship — threatening sanctions through “coercion, persuasion, and intimidation” — was unconstitutional. The principal deputy solicitor general, Brian Fletcher, argued on Monday that the Biden administration had the right to communicate through informing, persuading, or criticizing social media companies so long as it wasn’t actively coercing them. Like Bantam Books, he said, the case is about the “fundamental distinction between persuasion and coercion.”Mr. Fletcher said the states and social media users who brought the lawsuit didn’t have standing because they haven’t shown “an imminent threat that the government will cause a platform to moderate their posts in particular.”Justice Alito clashed with Mr. Fletcher on the standing issue and also said he couldn’t envision the government taking a similar approach to the traditional printing press and that it seemed the social media platforms were being treated as “subordinates.” “I cannot imagine federal officials taking that approach to the print media,” he said. “Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?” Mr. Fletcher said the government has long had the ability to persuade private entities to do something that it can’t do directly. “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,” he said. “For example, recently after the October 7 attacks in Israel, a number of public officials called on colleges and universities to do more about antisemitic hate speech on campus.”While the government can’t mandate those changes at colleges, it can call for them, he said. Similarly, “the government can encourage parents to monitor their children’s cell phone usage or internet companies to watch out for child pornography on their platforms, even if the Fourth Amendment would prevent the government from doing that directly,” Mr. Fletcher argued. In the social media case, the government was simply saying to the platforms that it believed the algorithms and the way data was presented was harmful to the public, Mr. Fletcher argued. The solicitor general of Louisiana, J. Benjamin Aguiñaga, fired back that the government “can’t do indirectly what it’s prohibited from doing directly” and called the case the “Bantam Books of the 21st century.” Citing the lower court decisions, he said the government’s “unrelenting pressure” could be the “most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.” In direct violation of the First Amendment, he said, “behind closed doors, the government badgers the platforms 24/7” and “abuses them with profanity” while warning that the White House is “concerned” and “considering its options.” This constitutes pressure, and “under this onslaught, the platforms routinely cave,” Mr. Aguiñaga said. “The government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That’s just being a bully.” He pushed back on the federal government’s coercion theory, arguing instead “regardless of the means that the government tries to use to pressure the platforms to commit censorship against third parties, the Constitution really doesn’t care about that, it’s the fact that what the government is trying to accomplish is the suppression of speech.” Justice Ketanji Brown Jackson suggested there are times that the government can “encourage” and “perhaps even coerce” removal of content, referring to a hypothetical situation where an individual was posting classified information — to which Mr. Aguiñaga agreed that the hypothetical would be in the government’s favor.Justice Sonia Sotomayor expressed frustration that she didn’t “know what to make of all this,” saying that Mr. Aguiñaga omitted information and wrongful attribution in his brief. Several of the conservative justices, too, appeared to push back on the idea that the Biden administration was directly censoring speech. Judge Terry Doughty of the Western District of Louisiana in 2023 issued a preliminary injunction against the government, halting aspects of the program and comparing the administration to an Orwellian “Ministry of Truth,” as the Sun has reported. That decision was largely upheld by the Fifth Circuit of the United States Court of Appeals, which found that the White House, the Surgeon General, the Centers for Disease Control, and FBI “likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state action” and likely violating the First Amendment. “The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life,” the Fifth Circuit noted. “Therefore, the district court was correct in its assessment— ‘unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’” The Biden administration appealed the decision to the Supreme Court in September, and the justices granted a request to block Mr. Doughty’s order while it weighs the case.

Supreme Court Looks Likely To Hand Biden a Win in Landmark Social Media Censorship Case

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