Demonstrators, led by anti-vaccine activists, rally outside the U.S. Supreme Court as justices hear arguments in an appeal by President Joe Biden's administration of restrictions imposed by lower courts on its ability to encourage social media companies to remove content deemed misinformation, in Washington, on March 18.Bonnie Cash/Reuters
Two Republican-run states are asking the U.S. Supreme Court to stop President Joe Biden’s administration from lobbying social-media companies to remove misinformation on COVID-19, the 2020 election and other topics.
The case received a chilly reception from the court during oral arguments Monday, with most justices questioning whether government officials simply asking platforms to remove information constituted coercion.
In the litigation, Murthy v. Missouri, the states of Missouri and Louisiana, along with five social-media users, accuse the federal government of violating constitutional freedom-of-speech rights. Officials from the White House and other government agencies asked Facebook, Twitter (now known as X), YouTube and Google to delete posts, ban accounts or make it harder for users to see content that promoted conspiracy theories about the pandemic, vaccines and the election.
On one occasion, for example, White House staffer Clarke Humphrey asked Twitter to erase a post by anti-vaccine activist Robert F. Kennedy Jr. that falsely claimed baseball legend Hank Aaron had died because of a COVID-19 vaccination. On another, Rob Flaherty, another White House official, accused Facebook of stoking “skepticism” in the 2020 results by allowing users to spread former president Donald Trump’s lies that the election was rigged.
Benjamin Aguiñaga, a lawyer for Louisiana, contended that such communications between the federal government and social-media companies constituted censorship by the government and went beyond the White House simply expressing its views. “Pressuring platforms in backrooms, shielded from public view, is not using a bully pulpit. That’s just being a bully,” he told the Supreme Court.
Supreme Court justices of different ideological stripes pushed back on this assertion. Elena Kagan, a liberal, and Brett Kavanaugh, a conservative, have both previously worked in the White House and said it was common for officials to complain to media outlets about stories they didn’t like.
In national-security-related situations, Justice Kavanaugh said, the government will ask newspapers not to publish specific information if “it is going to harm the war effort and put Americans at risk.” Press secretaries, meanwhile, “regularly call up the media and berate them.”
Amy Coney Barrett, a conservative, fretted that prohibiting officials from lodging protests about such content “would sweep in” a lot of routine conversations.
Mr. Aguiñaga agreed that there were at least some situations in which the government would be justified in flagging problematic content with social-media companies, such as leaked classified information or a hypothetical scenario in which a viral post encouraged children to jump out of windows. The government should not, however, push for those posts to be taken down, he said. “That is when you are interfering with third-party speech rights.”
Some of the few supportive comments came from Justice Samuel Alito, the conservative who wrote the decision overturning Roe v. Wade abortion-rights guarantees. He said he was surprised by the tone of e-mails from Mr. Biden’s officials to government liaisons at the tech companies. “It’s treating Facebook and these other platforms like they’re subordinates.”
Justice Alito theorized that social-media companies might have felt they had to do as the White House said for fear of the federal government breaking them up under antitrust laws. He pointed specifically to an e-mail from Mr. Flaherty to Facebook staffers reading, “I want an answer on what happened here and I want it today,” as proof of the government’s high-handedness.
But Brian Fletcher, a federal government lawyer, pointed out that this e-mail was not actually related to any demands for content deletion. Rather, it consisted of Mr. Flaherty complaining about a tech glitch that caused Mr. Biden to acquire fewer Instagram followers than he otherwise might have.
Mr. Fletcher contended that the e-mails did not show the federal government coercing anyone but simply making reasonable requests that social-media platforms stop spreading false information. He also laid out the context of the time the messages were sent, early in the government’s 2021 vaccination drive.
“Thousands of Americans were still dying every week and there was a hope that getting everyone vaccinated could stop the pandemic,” he said, adding that social-media algorithms were often “promoting bad information” at the time.
The court battle coincides with an increasingly fractious debate over government action to fight social-media disinformation. Mr. Biden and members of Congress in both parties are pressing for TikTok to either be banned or sold over fears it could be used by the Chinese government to propagandize American young people.
In Murthy v. Missouri, a Trump-appointed judge in Louisiana last year granted a preliminary injunction against the federal government from asking social-media companies to suppress content. An appeals court upheld part of the order. The Supreme Court has stayed it while it makes a decision, which is not expected until June.
Adrian Morrow