Supreme Court worries about limiting feds’ interactions with social media companies

Supreme Court justices seemed inclined Monday to give the government wide latitude to secretly pressure social media companies to silence dissenting voices, saying officials have the right to strenuously argue their case to the platforms.

The case grew out of the intense efforts by federal officials to try to police pandemic and election fraud claims with which they disagreed and a challenge by social media users and two Republican-led states that said the government had crossed lines into coercion by suggesting consequences for platforms that didn’t kowtow.

Many of the justices worried about blocking the FBI from warning platforms about terrorist accounts or a dangerous challenge aimed at teens and suggested that government officials need the ability to flag what they consider worrying content.

“Your view has the First Amendment hamstringing the government in significant ways in most important time periods,” Justice Ketanji Brown Jackson told opponents of the federal government’s position. “I’m really worried about that.”

“It seems like a very expansive argument,” Justice Elena Kagan said.

J. Benjamin Aguinaga, Louisiana’s solicitor general arguing for the federal government’s opponents, said officials may be able to offer their opinions but can’t coerce the platforms to do what the government couldn’t do itself.

“If the government thinks there’s false speech out there, the remedy for that is true speech,” Mr. Aguinaga said.

The case is one of several major tests of social media companies that the justices are deciding this term as they grapple with claims of free speech, censorship and platforms’ liability.

As the case wound its way through lower courts, it produced some striking findings about the steps the government took to try to control the public debate over key issues such as the origins of the coronavirus, vaccines and the 2020 election.

In one email, a White House official directed a platform to block a post “ASAP.” In other communications, the government sought updates on the platforms’ progress in removing offending posts. At one point, President Biden suggested that the platforms were “killing people” by refusing to tear down some pandemic-related content.

The platforms, while refusing some requests, largely promised to increase censorship of posts, according to the findings of a federal district court judge and later the 5th U.S. Circuit Court of Appeals.

“The officials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government,” the 5th Circuit ruled.

The three-judge panel issued an injunction ordering certain government officials to cut it out.

Brian Fletcher, principal deputy solicitor general, told the justices on Monday that the injunction is vague and unwieldy and tramples on the government’s ability to deliver its message, and the platforms are free to listen — or not.

“As long as the platforms are exercising their own judgment, that’s what the First Amendment protects,” Mr. Fletcher said.

He raised a host of procedural questions about the challenge, saying the social media users never proved that it was the government’s pressure that led to the tamping down of specific accounts and posts.

A 1963 Supreme Court case, Bantam Books v. Sullivan, loomed large. In that ruling, the justices found that a state government had crossed the line when it created lists of objectionable books and then tried to intimidate distributors. The state threatened to prosecute those providing the books to stores.

The justices agreed that sort of compulsion is illegal, but they seemed skeptical that federal officials had crossed that line in this case.

“How do you evaluate when coercion kicks in?” Chief Justice John G. Roberts Jr. asked.

Justice Clarence Thomas was irked by the Biden administration’s line-drawing.

“You really don’t see any difference between the government coordinating with the platforms to exclude other speech and persuading the platforms to engage or not permit other speech?” Justice Thomas said.

“What happened was on the persuasion side of the line,” Mr. Fletcher said.

Justice Samuel A. Alito Jr. said the tenor of the emails, replete with suggestions of partnership between the government and the social media companies, was troubling.

“I thought, ‘Wow, I cannot imagine federal officials taking that approach to the print media,” he said. “It’s treating Facebook and these other platforms like they’re subordinates.”

Justice Alito said the difference is that the federal government has Section 230 of the Communications Decency Act, which protects internet companies from liability for what people post on their platforms, and a threat of withdrawing those protections for companies that weren’t serving as partners.

The White House communications director made that threat clear in a 2021 email in which he mentioned Section 230 and said the administration was considering “whether these companies should be held liable for publishing false information.”

Mr. Fletcher acknowledged that the emails were “unusual” in their anger and prodding, but he said they were understandable as the result of the once-in-a-lifetime pandemic.

“There’s an intensity of the back-and-forth here, and there’s an anger that I think is unusual,” he said.

Justice Brett M. Kavanaugh, who served as a senior aide in the White House for President George W. Bush, said he was not surprised that officials would “regularly call up press people and berate them,” but he said the invitation for partnership was more curious.

Mr. Fletcher said the partnership was not coercive and the platforms were the ones saying they wanted to be partners.

The case is Murthy v. Missouri. Vivek Murthy is the surgeon general, holding one of the government offices accused of engaging in censorship.

A decision in the case is expected by the end of June.