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By Alex Swoyer and Stephen Dinan – The Washington Times
Supreme Court justices seemed inclined Monday to give the government wide latitude to secretly pressure social media companies to silence dissenting voices, saying officials have the right to strenuously argue their case to the platforms.
The case grew out of the intense efforts by federal officials to try to police pandemic and election fraud claims they disagreed with, and a challenge by social media users and two GOP-led states who said the feds had crossed lines into coercion by suggesting consequences for platforms that didn’t kowtow.
But many of the justices worried about blocking the FBI from warning platforms about terrorist accounts or a dangerous challenge aimed at teens, and suggested that government officials need to have the ability to flag what they consider worrying content.
“Your view has the First Amendment hamstringing the government in significant ways in most important time periods,” Justice Ketanji Brown Jackson told opponents of the federal government’s position. “I’m really worried about that.”
Benjamin Aguiñaga, Louisiana’s solicitor general arguing for the federal government’s opponents, said officials may be able to offer their opinion, but they can’t coerce the platforms to do what the government itself couldn’t do.
“If the government thinks there’s false speech out there, the remedy for that is true speech,” he said.
The case is one of several major tests of social media companies that the justices are deciding this term, as they grapple with claims of free speech, censorship and platforms’ liability.
As the case wound its way through the lower courts, it produced some striking findings about the steps the government took to try to control the public debate over key issues such as the origins of the coronavirus, vaccines and the 2020 election.
In one email, a White House official directed a platform to block a post “ASAP.” In other communications, the government said it wanted updates on progress the platforms had made in removing offending posts. President Biden himself at one point suggested the platforms were “killing people” by refusing to tear down some pandemic-related content.
The platforms, while refusing some requests, largely played ball, promising to increase censorship of posts, according to the findings of a federal district court judge and later the 5th U.S. Circuit Court of Appeals.
“The officials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government,” the 5th Circuit ruled.
The three-judge panel issued an injunction ordering certain government officials to cut it out.
But Brian Fletcher, principal deputy solicitor general, told the justices on Monday that the injunction is vague and unwieldy and tramples on the government’s ability to get its message out, and the platforms are free to listen — or not.
“As long as the platforms are exercising their own judgment, that’s what the First Amendment protects,” he said.
That irked some justices.
“You really don’t see any difference between the government coordinating with the platforms to exclude other speech and persuading the platforms to engage or not permit other speech?” said Justice Clarence Thomas.
“I’m not seeing it,” Mr. Fletcher replied. “What happened was on the persuasion side of the line.”
Justice Samuel A. Alito Jr. said the tenor of the emails, replete with suggestions of partnership between the government and the social media companies, was troubling.
“I thought, ‘Wow, I cannot imagine federal officials taking that approach to the print media,” he said. “It’s treating Facebook and these other platforms like they’re subordinates.”
He said the difference is that the federal government has what’s known as Section 230 of the Communications Decency Act, which protects internet companies from liability for what people post on their platforms, and a threat of withdrawing those protections for companies that weren’t serving as partners.
Mr. Fletcher said the emails were “unusual” in their anger and prodding, but he said they were understandable as the result of the once-in-a-lifetime pandemic.
“There’s an intensity of the back and forth here and there’s an anger that I think is unusual,” he said.
Justice Brett M. Kavanaugh, who once served as a senior aide in the White House for President George W. Bush, said he was not surprised by the idea that officials would “regularly call up press people and berate them.” But he said the invitation to partnership was more curious.
Mr. Fletcher, though, said the partnership was not coercive and the platforms were the ones saying they wanted to be partners.
The case is Murthy Surgeon General v. Missouri. Vivek Murthy is the surgeon general, which is one of the government offices accused of engaging in censorship.
A decision in the case is expected by the end of June.
- Stephen Dinan can be reached at [email protected].
- Alex Swoyer can be reached at [email protected].