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SCOTUS scrutinizes government contacts with social media platforms

By Andrew Chung and John Kruzel

WASHINGTON (Reuters) -U.S. Supreme Court justices on Monday appeared skeptical of a challenge on free speech grounds to how President Joe Biden’s administration encouraged social media platforms to remove posts that federal officials deemed misinformation, including about elections and COVID-19.

The justices heard oral arguments in the administration’s appeal of a lower court’s preliminary injunction constraining how White House and certain other federal officials communicate with social media platforms.

The Republican-led states of Missouri and Louisiana, along with five individual social media users, sued the administration. They argued that the government’s actions violated the U.S. Constitution’s First Amendment free speech rights of users whose posts were removed from platforms such as Facebook, YouTube, and Twitter, now called X.

The case tests whether the administration crossed the line from mere communication and persuasion to strong arming or coercing platforms – sometimes called “jawboning” – to unlawfully censor disfavored speech, as lower courts found.

Biden’s administration has argued that officials sought to mitigate the hazards of online misinformation, including false information about vaccines during the pandemic that they said was causing preventable deaths, by alerting social media companies to content that violated the platforms’ own policies.

Justice Department lawyer Brian Fletcher told the justices that the government may not use coercive threats to suppress speech, but it is “entitled to speak for itself” by informing, persuading or criticizing private speakers.

The plaintiffs have argued that platforms suppressed conservative-leaning speech, which they attribute to government coercion, a form of state action barred by the First Amendment.

Questions posed by some of the justices focused on whether the plaintiffs had proper legal standing to sue, and how the government had caused harm.

Conservative Justice John Roberts told Benjamin Aguinaga, Louisiana’s solicitor general, that the government is “not monolithic” and when the government applies pressure, a platform or media outlet “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’s trying to do.”

Roberts added: “That has to dilute the concept of coercion significantly, doesn’t it?”

Conservative Justice Samuel Alito expressed alarm at the pressure administration officials applied to social media platforms to target misinformation, treating them as “subordinates,” demanding answers, exhorting them to be “partners,” and “cursing them out” when dissatisfied.

“I cannot imagine federal officials taking that approach to the print media,” Alito said.

Fletcher noted that the context was “a time when thousands of Americans were still dying every week, and there was a hope that getting everyone vaccinated could stop the pandemic. And there was a concern that Americans were getting their news about the vaccine from these platforms, and the platforms were promoting – not just posting, but promoting – bad information.”

“I know the objectives were good,” Alito responded, but said he doubted the federal government treated print media the same way.

Conservative Justice Brett Kavanaugh suggested such interactions might not be unusual. There are “press people throughout the federal government who regularly call up the media and berate them,” Kavanaugh said.

Fletcher said the challengers in the case lacked the proper legal standing to bring the lawsuit in the first place “because they have not shown an imminent threat that the government will cause a platform to moderate their posts in particular.”

Aguinaga said the administration’s actions were “not using the bully pulpit at all. That’s just being a bully.”

Liberal Justice Ketanji Brown Jackson described a hypothetical scenario in which social media platforms allowed posts challenging children to jump out of windows at increasingly heights, with serious injuries and deaths resulting.

“Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” Jackson asked Aguinaga.

Government officials could call the platforms to say it is a problem, Aguinaga responded. But the moment that the government presses them to take down the posts, “that is when you are interfering with third-party speech rights,” Aguinaga added.

The justices in February heard arguments in another social media case over whether to uphold laws passed in Texas and Florida that would restrict the content moderation practices of platforms.

In the case argued on Monday, the plaintiffs sued officials and agencies across the federal government, including in the White House, FBI, surgeon general’s office, Centers for Disease Control and Prevention and the Cybersecurity and Infrastructure Security Agency.

Louisiana-based U.S. District Judge Terry Doughty issued a preliminary injunction in July 2023 that barred an array of government officials from communicating with platforms regarding content moderation, such as urging the deletion of certain posts.

The New Orleans-based 5th U.S. Circuit Court of Appeals subsequently narrowed that order. The Supreme Court put the injunction on hold pending the review of the case by the justices.

The Supreme Court’s ruling is expected by the end of June.

(Reporting by Andrew Chung and John Kruzel; Editing by Will Dunham)

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