Can the government pressure Big Tech to censor speech? Supreme Court hears arguments

President Joe Biden took office in January 2021, amid the rise in distrust of the COVID-19 vaccine. His administration blamed Facebook and other social media companies for “amplifying untrustworthy content, disinformation, and misinformation,” as former press secretary Jen Psaki said during a press briefing on May 5, 2021.

This led the Biden administration to launch a pressure campaign against private companies like Meta, Twitter — now known as X — and Google, the owner of YouTube, to convince them to suppress certain information.

In one instance, Rob Flaherty, the former White House director of digital strategy, wrote to Facebook asking the company to send a detailed report related to allegations stemming from a Washington Post article from March 2021, which alleged Facebook was allowing misinformation to spread.

“I am not trying to play ‘gotcha’ with you. We are gravely concerned that your service is one of the top drivers of vaccine hesitancy period,” wrote Flaherty, adding, “We want to know that you’re trying, we want to know how we can help, and we want to know that you’re not playing a shell game with us when we ask you what is going on.”

“This would all be a lot easier if you would just be straight with us,” Flaherty wrote, as noted in the initial case document submitted to the Supreme Court.

Facebook in its response said, “We obviously have work to do to gain your trust. ... We are also working to get you useful information that’s on the level.” In the following days, the White House asked Meta to create censorship policies to discourage anti-vaccine content from going viral.

Supreme Court case zeroes in on how government and Big Tech should communicate

On Monday, the Supreme Court heard oral arguments for the case, Murthy v. Missouri. It was filed by two Republican now-former attorneys general — Eric Schmitt of Missouri and Jeff Landry of Louisiana — and five social media users who claim their posts related to the pandemic and the 2020 presidential election were censored and downgraded.

Last year, lower courts sided with claims by Schmitt and Landry that these moderation decisions violated the First Amendment. U.S. District Court Judge Terry Doughty filed an injunction that banned several federal officials and agencies, including Surgeon General Vivek Murthy, White House press secretary Karine Jean-Pierre and all employees of the Justice Department and FBI, from contacting social media companies to get content removed, according to Politico. The appeals court upheld these restrictions.

The crux of this case is the relationship between the government and Big Tech, and whether the First Amendment prohibits jawboning, which, as per the Knight First Amendment Institute at Columbia University, is the government’s “informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation practice.”

The Supreme Court’s decision, expected to come in June, will set an important precedent for the future of freedom of speech in an age dominated by digital town squares, and the role of government in curbing disinformation.

Does the government have the right to speech?

During the oral arguments, Brian Fletcher, the Biden administration’s principal deputy solicitor general, said while governments cannot make threats to stiffen free speech, “it is entitled to speak for itself by information, persuading, or criticizing private speakers.”

He referenced the 1963 precedent in the Bantam Books Inc. v. Sullivan, related to a regulatory commission that would pressure booksellers to remove titles morally “objectionable,” which led to self-censorship. In this case, the Supreme Court sided against the commission.

Fletcher said Murthy v. Missouri is also about the “fundamental distinction between persuasion and coercion,” but it isn’t about a social media user alleging an adverse effect to their speech, but a group of plaintiffs trying “to audit all of the executive branch’s communications with and about social media platforms.” He also argued the Biden administration did not threaten an adverse government action.

Justice Clarence Thomas asked what the constitutional basis for government speech is. Fletcher responded, “The government is entitled to speech for itself,” which isn’t a feature of the First Amendment but of “our constitutional democracy.”

The injunction by the lower court makes it tough for agencies like the FBI to contact social media companies without it being viewed as coercion since the agency yields a lot of power, even on issues related to national security, like the anti-Semitic letter written by Osama Bin Laden that was trending on TikTok last year.

Justice Samuel Alito pointed to the “constant pestering” Facebook faced through emails and regular meetings, asking Fletcher if the Biden administration also treats big newspapers or wire services the same way. Fletcher said the “back and forth between the government and the media isn’t unusual,” while pointing out that these conversations took place “during a once-in-a-lifestyle pandemic.”

Can the government suppress speech for compelling reasons?

Ultimately, Fletcher argued the challengers have not proved that the social media posts being taken down were a direct result of the government’s actions.

“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.

But Benjamin Aguiñaga, the solicitor general of Louisiana, pushed back, saying the 20,000 pages of records reveal “unrelenting pressure” by the Biden administration, which ultimately suppressed “the speech of millions of Americans.”

The administration “ominously” said it’s considering its options and accused platforms “of playing total Calvinball and of hiding the ball,” Aguiñaga said.

On the subject of coercion, he said: “The government cannot induce, encourage, and promote private actors to do directly what the government can’t itself do directly.”

Justice Kentanji Brown Jackson retorted that in some cases, the government can suppress speech if there’s a compelling reason.

Aguiñaga argued the communication between the White House and social media platforms shows the tech companies moved “beyond what their own policies required.”

At one point, Justice Sonia Sotomayor, who asked Aguiñaga pointed questions about proving injury incurred by plaintiffs, said she had a problem with Aguiñaga’s brief, claiming it relayed “information that changes the context of some of your claims.”

“You attribute things to people who it didn’t happen to,” said Sotomayor. “I’m not sure how we get to prove direct injury in any way.” Aguiñaga apologized for the lack of clarity.

The difference between coercion and encouragement

Justice Amy Coney Barrett was also left confused. When talking about government pressure applied on The New York Times or The Washington Post to not run an opinion piece, Aguiñaga had backed off, claiming significant encouragement wasn’t enough since the opinion writer could sell the story to another outlet. Sotomayor also noted Aguiñaga’s claims that the world of social media, which he said was concentrated, is a different story.

“It seems to me that as a matter of law, the same legal standard would have to apply across all of these areas,” said Sotomayor. Aguiñaga maintained the administration’s efforts to prompt action indirectly when it is constitutionally prohibited to make a direct move, adding both coercion and encouragement are the indirect methods used.

But, Barrett said, “encouragement would sweep in an awful lot.”

Later, Aguiñaga said, “Just asking very, very politely or saying very, very politely we think you should take it down, that that shouldn’t be a First Amendment problem but the reality is that when somebody like the FBI or somebody lying a deputy assistant to the president makes a statement like that, that statement carries force.”

The Knight First Amendment Institute at Columbia University filed a centered amicus brief, referenced by the justices during the oral arguments.

The Institute’s director, Alex Abdo, said he was encouraged to see the court considering the First Amendment right of users on social media platforms and the government’s ability to participate in the public discourse.

“To that end, we hope that the Court resolves these cases by making clear that the First Amendment prohibits coercion but permits the government to attempt to shape public opinion through the use of persuasion,” said Abdo.