An effort by two Republican-led states to limit the Biden administration’s interactions with social media companies met a tough reception at the Supreme Court on Monday, with several justices questioning the states’ legal theories and factual claims.
The majority of justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or technology platforms, not to release information as long as the requests are not backed by coercive threats.
Justices Brett M. Kavanaugh and Elena Kagan, both former White House counsels, said interactions between administration officials and news outlets provided a valuable analogy. Officials’ efforts to influence coverage were, they said, part of a valuable dialogue not barred by the First Amendment.
Court members also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five others — had suffered the kind of injury that allowed them to sue. They also suggested that a broad injunction banning contacts between many officials and the platforms was by no means the appropriate solution.
Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your lawyer,” he told J. Benjamin Aguiñaga, Louisiana’s attorney general. “You omit information that changes the context of some of your claims.”
Mr. Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”
The case was the latest in an extraordinary series of cases that the term requires judges to evaluate the meaning of free speech in the Internet age.
The case arose out of a barrage of communications from administration officials urging the platforms to remove posts about topics such as coronavirus vaccines and allegations of voter fraud. Last year, a federal appeals court severely limited such interactions.
The court under this term has repeatedly faced fundamental questions about the scope of the government’s power over large technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that restrict large social media companies from making editorial judgments about what messages to allow.
These four cases, along with Monday’s, will collectively balance the power of government and powerful tech platforms in the realm of free speech.
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Brian Fletcher, the principal deputy attorney general for the Biden administration, argued that the administration has the right to speak to social media companies in an effort to persuade them to choose to remove or limit certain content, as long as it does not force them to. He said the test should be whether the government is making threats. Bullying solicitations are protected by the First Amendment, he said.
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Mr Fletcher added that social media platforms are big companies with enough influence to fend off government efforts to influence them. In fact, when university researchers working with the government flagged misinformation about the 2020 election, the platforms refused to do anything two-thirds of the time.
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Benjamin Aguiñaga, the attorney general of Louisiana, one of the Republican-controlled states that sued, said the government was forcing social media platforms to remove posts, which amounted to government censorship. It addressed a key issue in the government’s content moderation efforts in recent years — one that began as efforts to combat foreign meddling and disinformation moved to cover speech by Americans in 2020, about the election and the pandemic.
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The case of Murthy v. Missouri, No. 23-411, was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with people who said their speech had been censored. They did not dispute that the platforms had the right to make independent decisions about what would appear on their sites. But they said government officials’ conduct in urging them to remove what they say is misinformation amounted to censorship that violated the First Amendment.
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A unanimous three-judge panel of the US Court of Appeals for the Fifth Circuit agreed, saying officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI had likely crossed constitutional lines. they are trying to get the platforms to remove posts about what they have flagged as misinformation. The commission, in an unsigned opinion, said officials had over-involved the platforms or used threats to induce them to act.
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The court granted the Biden administration’s request to put the Fifth Circuit’s decision on hold and agreed to hear the case. Three judges dissented. “Government censorship of private speech is antithetical to our democratic form of government, and today’s decision is therefore particularly troubling,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.
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A second argument on Monday raises a related constitutional question about government power and free speech, though not in the context of social networking sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.
Charlie Savage, Jim Rutenberg and Steven Lee Myers contributed to the report.
