Supreme Court: Updates on oral arguments in social media disinformation case

WASHINGTON — Several of the Supreme Court’s conservative justices joined their liberal colleagues Monday in pushing back on states that want to restrict how the federal government can interact with social media platforms about potential misinformation.

The justices expressed concern that drawing the line too tight would prevent the government from talking to Facebook, X and other platforms about the potential harm caused by posts related to war, terrorist activity or a hypothetical viral challenge among teenagers to jump out of windows.

Louisiana Solicitor General Benjamin Aguinaga told the court that in his “purist” view, even mild encouragement by the government to Facebook on what they should or shouldn’t allow goes too far.

Louisiana, Missouri and others have accused the Biden administration of illegally targeting conservative opinion on social media. While lower courts have ruled in favor of the states, the Supreme Court blocked those decisions until it delivers its own ruling.

Justice Amy Coney Barrett said barring encouragement would be a sweeping restriction and could prohibit, for example, the FBI from asking platforms to remove personal information about a public official, an activity known as doxing.

Justice Brett Kavanaugh asked Aguinaga about the fact that platforms don’t always do what the government wants.

Aguinaga said that doesn’t matter. It can still be improper pressure under the standard he urged the court to adopt.

Justice Ketanji Brown Jackson said that standard would hamstring the government in significant ways.

"Some might say that the government actually has a duty to take steps to protect the citizens of this country," she said. "And you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information."

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Kagan asks for evidence of government coercion

Since social media platforms make decisions all the time about content, what’s the evidence that government prodding prompted the platforms to take action against the users who brought the challenge, Justice Elena Kagan wanted to know.

Louisiana Solicitor General Benjamin Aguinaga said Facebook blocked accounts of two health groups in Louisiana two months after it had told the government it was scrutinizing health posts.

“A lot of things can happen in two months,” Kagan said, asking for more concrete evidence. She also questioned whether a company as powerful as Facebook would be easily influenced by the government.

“It seems sort of hard to hard to overbear Facebook’s will from what I can gather from the world,” she said. “How do you say it’s the government rather than Facebook?”

Aguinaga said the justices should look at Facebook’s own comments that it was trying to partner with  the government.

-- Maureen Groppe

Robert tries to define line between coercion and persuasion

Chief Justice John Roberts asked the Justice Department how courts should decide when the government steps over the line in communicating with social media platforms.

Brian Fletcher, principle deputy solicitor general at the Justice Department, said the test should be whether a reasonable person would see a threat of retaliation in the government’s communication. In the interactions at issue in this case, Fletcher said, there was no retaliation when the platforms did not do what the government requested.

With Louisiana’s solicitor general, Roberts asked whether it would be coercion if the government “encouraged” platforms to take down posts about teenagers challenging each other to jump out of windows.

While it might make sense as a policy matter for the government to step in, Louisiana Solicitor General Benjamin Aguinaga said, “the moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem.”

-- Maureen Groppe

Supreme Court ‘takeaway’ should be government can’t ‘run rampant pressuring the platforms’: Louisiana solicitor general

Justice Neil Gorsuch said the Supreme Court has faced an “epidemic” of national injunctions ordered by district court judges. But he asked what remedy the high court could order in this case because only seven people are involved and the government was prohibited from contacting platforms that the litigants didn’t use.

“We’ve seen an epidemic of these lately,” Gorsuch said of universal injunctions. “What do we do about it?”

Louisiana Solicitor General Benjamin Aguinaga said the breadth of the injunction resulted from the breadth of the government’s sweeping action in opposition to posts about COVID-19. He acknowledged the Supreme Court could made a decision limited to five platforms or seven people, but he asked the justices to limit government pressure on social media.

“The most important takeaway in this case is that the court has to say something in our favor on our merits,” Aguinaga said. “The government can’t just run rampant pressuring the platforms to censor private speech.”

--Bart Jansen

Sotomayor: 'I have such a problem with your brief'

Justice Sonia Sotomayor said she had problems with the states’ arguments for not showing harm to the people they were representing. She said lawyers cited events that happened to the wrong people or contentious posts that were simply reposted by the litigants.

“I have such a problem with your brief,” Sotomayor said. “You omit information that changes the context of some of your claims. You attribute to things to people that it didn’t happen to.”

“I don’t know what to make of all this,” Sotomayor added. “I’m not sure how we get to prove direct injury in any way.”

Louisiana Solicitor General Benjamin Aguinaga apologized if there were any mistakes in the written arguments. But he said a Louisiana resident has one of the best arguments in the case, after the White House asked Facebook not to distribute messages about vaccine hesitancy and two months later two health groups she worked with were blocked on Facebook. The action came during the state legislative session when the groups were trying to mobilize support for legislation about vaccinations.

“I think this is one of the scariest example in the record of what is at stake here,” Aguinaga said.

--Bart Jansen

More: 'I live in frustration': Justice Sotomayor on working with a conservative Supreme Court

Social media platforms often cave to government pressure: Louisiana solicitor general

Benjamin Aguinaga, Louisiana’s solicitor general, argued federal government censorship has no place in the democracy. But the 20,000-page record of the case illustrated censorship of millions of Americans, including renowned scientists, in what was “arguably the most massive attack against free speech in American history.”

“Behind closed doors the government badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned and ominously says the White House is considering its options,” Aguinaga said. “Under this onslaught the platforms routinely cave.”

Facebook recently acknowledged in an internal email to former United Kingdom deputy prime minister Nick Clegg “because we are under pressure by the administration. We shouldn’t have done it,” Aguinaga said.

--Bart Jansen

Laughter in the courtroom as Alito talks about government press officers and the media: 'curse them out'!

Justices questioned the harsh language in emails between Biden administration officials and social media platforms over posts questioning the safety of COVID-19 vaccines.

“It’s got these big clubs available to it,” Justice Samuel Alito said of the government. “It’s treating Facebook and these other platforms like their subordinates. Would you do that to the New York Times or the Wall Street Journal or the Associated Press?”

Brian Fletcher, principle deputy solicitor general at the Justice Department, acknowledged that anger occasionally flashed in the effort to save lives.

More: In Trump Supreme Court immunity appeal, timing of case could be a win for ex-president

“There is an intensity to the back and forth here and there is an anger that I think is unusual,” Fletcher said. “The anger is when the officials think that the platforms aren’t being transparent about the scope of the problem or the information that’s available.”

Alito suggested government spokespeople could reply more harshly to news coverage.

“I don’t know whether our public information officer is here today but maybe she should take a note about this so whenever they write something we don’t like, she can call them up and curse them out and say, ‘Why don’t we be partners? We’re on the same team. Why don’t you show us what you’re going to write beforehand. We’ll edit it for you and make sure it’s accurate,’” Alito said to laughter.

Fletcher replied the forcefulness of the government messages reflected the number of deaths from COVID at a time when it was thought the vaccine would halt the pandemic.

“I’m acknowledging the reality that this happens and it may be commonplace,” Fletcher said. “Fundamentally, the First Amendment isn’t a civility code. It is an important protection, a critical protection against actual coercion.”

--Bart Jansen

Persuasion is not coercion, justice dept. lawyer tells the court

Brian Fletcher, the Justice Department’s principal deputy solicitor general, told the justices Monday morning that neither the states of Louisiana and Missouri, nor the five people involved in the case had a legitimate reason to file the lawsuit because none of them had shown that social media platforms restricted their speech.

“That problem has infected very step of this case,” Fletcher said.

Fletcher told the justices the government may not use coercive threats to suppress speech, but can inform, persuade and criticize private speakers. Fletcher argued that the Fifth U.S. Circuit Court of Appeals mistook persuasion for coercion by finding the FBI is inherently coercive because it is a law enforcement agency and because White House advisers used strong language.

“Because no threats happened here, the court should reverse,” Fletcher said.

--Bart Jansen

More Supreme Court: Mask mandates? Supreme Court rejects appeal from Marjorie Taylor Greene, GOP lawmakers

Can states bar social media companies from blocking misinformation?

The Supreme Court in late February sounded skeptical of the broad sweep of laws passed by Texas and Florida to regulate powerful social media companies like Facebook, YouTube, TikTok and X, but the justices struggled with how to assess the huge First Amendment implications of the controversial legislation.

Along with Monday's social media arguments, it is the most closely-watched − and politically tinged − case of the year, one that could change the way millions of Americans interact with social media ahead of the presidential election.

Texas and Florida passed laws in 2021 limiting the ability of social media giants to regulate user content over concerns they were suppressing conservative viewpoints. Inspired in part by decision of Twitter and other major platforms to suspend former President Donald Trump after the Jan. 6 attack on the U.S. Capitol, the laws would severely limit the ability of social media companies to kick users off their platforms or remove individual posts for violating a platform's rules.

Chief Justice John Roberts said during February arguments that the Texas and Florida case turns on whether the decision of who can and can’t post content is left to a government entity or to the social media platforms.

“The First Amendment,” Roberts said, “has a thumb on the scale when that question is asked.”

--Maureen Groppe

More: Supreme Court sounds skeptical of Texas and Florida laws to regulate social media

Can a public official block you on Facebook? Sometimes, the court says

On Friday, the Supreme Court ruled in a unanimous decision that public officials can block constituents from their personal social media accounts − unless they've been using those personal accounts to share information related to their governmental role.

The issue first became prominent when, as president, Donald Trump blocked some critics from his personal Twitter account, which he used to make almost daily announcements and commentary from the White House. “State officials have a choice about the capacity in which they choose to speak,” Justice Amy Coney Barrett wrote in her opinion for the court. “If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.”

--Maureen Groppe

More: Supreme Court defines when public officials may block critics on personal social media accounts

This article originally appeared on USA TODAY: Supreme Court: Updates on oral arguments in social media case