March 18, 2024 – 7:30 AM PDT
WASHINGTON (Reuters) – The U.S. Supreme Court on Monday was hearing arguments in another battle over social media content moderation – a challenge on free speech grounds to how President Joe Biden’s administration encouraged platforms to remove posts that federal officials deemed misinformation, including about elections and COVID-19.
The administration appealed 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 (META.O), YouTube (GOOGL.O), 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.
Questioned by conservative Justice Clarence Thomas about the constitutional basis for government speech, Fletcher said the Supreme Court “hasn’t located it in any specific constitutional provision” but added, “It’s just a feature of democratic governance.”
“As the court has said, the government couldn’t function if it couldn’t express points of view,” Fletcher said.
Fletcher also 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.”
Fletcher asked the justices to reaffirm that “government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action. And because no threats have happened here, the court should reverse” the lower court’s action that favored the challengers.
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.
The Republican backers of those laws have voiced concern over what they portray as bias against conservative voices on these platforms. Many researchers, as well as liberals and Democrats, have warned of the dangers of social media platforms amplifying misinformation and disinformation about public health, vaccines and election fraud.
In the case being argued on Monday, the Supreme Court in October put the lower court’s injunction on hold pending the review of the case by the justices.
The Justice Department said that government officials, including presidents, long have used the bully pulpit to express views and to inform on matters of public concern.
It also said that private entities that make decisions on that information are not state actors as long as they are not threatened with adverse consequences. The department also said that an injunction limiting the administration’s actions could chill vital government communications, including to protect national security.
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. Doughty concluded that the plaintiffs were likely to succeed on their claim that the government helped suppress “disfavored conservative speech” on mask-wearing, lockdowns and vaccines intended as public health measures during the pandemic, or that questioned the validity of the 2020 election in which Biden, a Democrat, defeated Donald Trump, a Republican.
The injunction 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’s ruling is expected by the end of June.
Reporting by Andrew Chung and John Kruzel; Editing by Will Dunham