The Bounds on Communications with Social Media: The Case of the U.S. Supreme Court and the Biden-Centric Injunction

That’s “kind of silly,” says former White House counsel Ruemmler, who notes that the president can’t remove existing legal protections for social media companies. Congress can’t do that.

“These are big companies. They don’t scare easy,” he says, adding that there always are competing political imperatives in public policy. “That’s life in the big leagues, that’s what I said,” he said.

The Biden administration refutes the allegations in a manner that is atypical of their predecessors. “When I looked at the government’s brief, they don’t use the L-word, the ‘lying’ word, but they do everything but,” observes former FBI counsel Weissmann.

The Biden administration was accused of coercing platforms to censor viewpoints they disagreed with by the attorneys general of Louisiana and Missouri. They had secured wins from the lower courts, which issued and upheld an injunction on the government’s communications with platforms, though the appeals court narrowed its scope. The justices will have to determine if the injunction was appropriate and if it fell between persuasion and coercion.

A case in the U.S. Supreme Court about the role of First Amendment in the internet age is taking place.

The New York State Department of Financial Services vs the National Rifle Association: The “Murder Insurance” Claims to the U.S. Supreme Court

“There is no clear partisan line” in Monday’s case, observes NYU law professor Ryan Goodman. And you don’t have to be a genius to see that some politicians have a convenient way of switching sides, depending on the content of the speech at issue.

Missouri Attorney General Andrew Bailey, for instance, brought this case accusing the Biden administration of “arguably … the most massive attack against free speech in United States history.” He was threatening legal action against Target for selling t-shirts related to the Pride campaign.

Presidents of both parties and members of Congress can and do say plenty of nasty things about social media companies in public; it’s the private communications that make critics suspicious, according to Jameel Jaffer, executive director of the Knight First Amendment Institute.

Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. It sounds easy, but it is more difficult than you might think.

Just where the Supreme Court justices stand on this or other social media questions before the court this term is unclear. But in this case, the court’s three most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would not have paused the lower court’s decision while the case is litigated in the high court. They would have allowed it to take effect.

After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The New York state Department of Financial Services was sued by the National Rifle Association.

The NRA charged that during an agency investigation into so-called “murder insurance,” the Department of Financial Services violated the NRA’s free speech rights by issuing letters and news releases that dissuaded financial institutions from doing business with the gun rights advocacy group. “Murder insurance” is the derogatory term for insurance that covers the costs of using firearms to shoot another person, and it is illegal in New York. The 2nd US Circuit Court of Appeals ruled that the news releases and letters were appropriate government speech, leading to the appeal to the Supreme Court by the NRA.

“When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. And the result of that pressure was censoring certain viewpoints,” contends lawyer Younes.

The depositions of the people involved in the case include quotes from government emails which they claim prove the government’s behavior.

In Murthy v. Missouri, attorneys general from Louisiana and Missouri, as well as several other individual plaintiffs, argue that government agencies, including the Centers for Disease Control (CDC) and the Cybersecurity and Infrastructure Security Agency (CISA), have coerced social media platforms to censor speech related to Covid-19, election misinformation, and the Hunter Biden laptop conspiracy, among others.

That is hardly the picture painted by the other side in this case. They claim their speech was censored. Two of the plaintiffs are epidemiologists who were advocates of exposing most people to get COVID-19 in order to establish herd immunity instead of imposing lockdowns, masks and other steps taken by both the Trump and Biden administrations. There is no herd immunity with the coronaviruses, which has constantly evolved and changed, according to the CDC.

Under the established First Amendment precedent, the government is allowed to express its beliefs and try to persuade others, according to the Biden administration. In a brief, the government says that the president uses the bully pulpit to try to convince Americans to act in ways that would benefit the public.

Justice Thomas, who has long complained that social media companies unconstitutionally censor speech, pressed Fletcher about what speech rights the government has under the Constitution. Fletcher replied that the court has repeatedly said “that the government is entitled to speak for itself. It’s not a right that comes from the First Amendment. It’s a part of our democracy.

The government notes that officials in both Republican and Democratic administrations have interacted regularly with social media companies. Indeed, from the beginning of the pandemic in the Trump administration, the companies themselves reached out to government health agencies for guidance on what was and was not reliable medical information.

Former Obama White House counsel Kathryn Ruemmler said she was particularly struck in reading the lower court opinions in this case because “there really was no recognition … that the vast majority of these communications between the government officials and the social media companies related to a global health crisis.”

“If you think about what is the purpose of the government, why do governments exist? It’s really to protect the health and safety and welfare of its citizens,” she said during a panel discussion at New York University’s School of Law.

Back-and-Forth with Social Media: What the FBI ‘Negatively’ Sensitive Attorney General Can Say About Facebook

The government makes arguments about the FBI’s dealings with social media companies. Private companies and the government usually benefit from this type of back-and-forth.

“Suppose that someone from the Department of Defense informs you that a terrorist group is calling for violence against a State Department employee overseas and that you need to be ready to kill that individual.” The FBI general counsel would typically alert the social media company and have a conversation with the company that seems to violate their policies, according to Weissman. You can understand why, obviously, but that’s for you to decide. there is a grave concern on our part.”

The majority of the time the social media company will take down the post because it does violate company policy but it misses the mark by the company’s computer-generated filters. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.

Louisiana’s Solicitor General argued that government officials should not encourage a particular course of action when they contact social media companies. That prompted this from Justice Barrett: “Just plain vanilla encouragement,” asked Justice Barrett, her voice rising in gentle disbelief. It has to be some sort of significant encouragement because it would be swept in an awful lot.

Relating to a statement by President Biden at the height of the outbreak, Justice Gorsuch asked whether an accusation by a government official that unless you change your policies, you’re responsible for killing people, could be viewed as coercion.

Fletcher replied that he found it “hard to imagine” such a public statement being coercion, though he conceded it’s not impossible. “All I’m saying is that didn’t happen here,” he said. “The president said this to the public in the middle of a pandemic, and then three days later — I think this is important — he clarified. He said he’s not suggesting that Facebook isn’t killing people. I’m saying that the people are spreading misinformation.

Several justices questioned the record in the case. She didn’t see anything that supported barring government contacts. “I have a problem with your brief counselor”, was the words that JusticeSonia had for Aguiaga. You don’t add details that change the context of your claims. You attribute things to people who didn’t do it. I’m not sure how we get to prove direct injury in any way.”

Aguiñaga agreed that “as a policy matter, it might be great for the government to be able to do that, but 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.”

“Under my colleague’s hypothetical, it was not necessarily to eliminate viewpoints,” the purpose of the contact was to eliminate “some game that is seriously harming children around — around the country, and they say we — we encourage you to stop that.”

Conservative Justice Amy Coney Barrett asked Aguiñaga a different hypothetical, where he and other members of the Louisiana state government were doxxed and people were posting on social media that “people should rally, and you should be harmed.” She asked, assuming the speech did not cross the line of becoming illegal, whether it would be appropriate for the Federal Bureau of Investigation to encourage social media platforms to take down the messages.

Justice Krugman asked if publishing classified information was okay. Are you suggesting the government can’t try to get that taken down? Or what about factual inaccuracies?

The FBI should never contact social media companies again: Aguiaga versus Coney Barrett, a former justice Clarence Thomas, and Justice Alito

Aguiaga stated that pressuring print and other media outlets is not the same as pressuring social media platforms.

She and Justice Amy Coney Barrett postulated that the FBI might contact social media companies to tell them that, while they may not realize it, they have been posting information from a terrorist group aimed at covert recruitment.

She said she had encouraged press to suppress their own speech. “You just wrote a story that’s filled with factual errors. There are 10 reasons why you shouldn’t do that again. Thousands of times a day, this happens in the federal government.

“I know how to berate the media because I used to work for the federal government, and I would call them up and berate them,” he said, though it’s not clear if he was berating the media or the target.

Two justices who once worked in the White House–Brett Kavanaugh, a Trump appointee, and Elena Kagan, an Obama appointee–were the most outspoken about the long history of government contacts with media companies.

Justice Clarence Thomas and Justice Alito questioned the states. Thomas asked if the states could make their case even without proving the coercion if they could show the government coordinated with the platforms. Aguiñaga said they could. The states argued that they were being coerced, and Alito attempted to steer the discussion back to that point.

Conservative Justice Neil Gorsuch also expressed frustration with what he called an “epidemic” of “universal injunction[s],” questioning the remedy offered by the lower court, which sought to block a large swath of communication. Aguiaga said the scope of the injunction reflected the broad enterprise of the government.

It seemed strange that the government and platforms would seek to work on issues like covid. Fletcher said that’s a function of the unusual circumstances in a scenario like the pandemic, where platforms chose to advance good information and reach out to the government, so in that case, “it’s an open door.”

After Aguiñaga began responding that he’s a “purist on the First Amendment,” Coney Barrett interrupted and said, “Do you know how often the FBI makes those kinds of calls?”

Supreme Court Chief justice John Roberts asked whether encouraging platforms to take something down rises to the level of coercion. Jackson’s example was not about eliminating a viewpoint, it was an instruction for a dangerous game.

Jackson said that his biggest concern was that the First Amendment wouldn’t fit in with the important time periods. I’ve heard you say a couple times that the government can post its own speech, but in my hypothetical, ‘Kids, this is not safe, don’t do it,’ is not going to get it done.”

The government could use the bully pulpit to encourage platforms to do that, according to Aguiaga. But he took issue with private communications instructing platforms on what they should do.

The Louisiana Solicitor General had argued for the states and individual victims of the Biden administration’s communications with social media companies. The justices appeared to worry about the far-reaching consequences of limiting the ways the government is able to speak with tech platforms.

In a statement released in May 2022, Missouri attorney general Eric, said that members of the Biden administration colluded with social media companies to remove truthful information related to the lab-leak theory, the efficacy of masks and the election. The lab-leak theory is no longer valid, and most of the evidence points to Covid-19 coming from animals.

While the government shouldn’t necessarily be putting its thumb on the scale of free speech, there are areas where government agencies have access to important information that can—and should—help platforms make moderation decisions, says David Greene, civil liberties director at the Electronic Frontier Foundation, a nonprofit digital rights organization. The foundation filed an amicus brief on the case. “The CDC should be able to inform platforms, when it thinks there is really hazardous public health information placed on those platforms,” he says. “The question they need to be thinking about is, how do we inform without coercing them?”

Children’s Health Defense (CHD), an anti-vaccine nonprofit, was formerly chaired by now presidential candidate, Robert F. Kennedy, Jr. The group was banned from Meta’s platforms in 2022 for spreading health misinformation, like that the tetanus vaccine causes infertility (it does not), in violation of the company’s policies. Mary Holland, president of CHD, said in a statement that Robert F Kennedy Jr. pointed out that our Founding Fathers put the right to free expression in the First Amendment. In his words, ‘A government that has the power to silence its critics has license for any kind of atrocity.’”