The United States Supreme Court heard oral arguments Monday morning in the case against a number of federal officials alleging that they violated Americans’ First Amendment rights by pressuring social media companies to censor certain speech.
While those arguing on behalf of the federal government defended their ability to communicate and coordinate with social media platforms concerning their content moderation policies, the states’ representative asserted that this is an impermissible violation of users’ First Amendment rights.
Although both lower court decisions largely sided with the states, the Justices appeared somewhat skeptical during Monday’s oral arguments of fully affirming these rulings, raising a number of concerns about the potential repercussions that their opinion could have down the line in other situations and under other circumstances.
That said, the Justices did place a great deal of emphasis on attempting to parse out where each side specifically drew the line between permissible and impermissible communication among federal officials and social media platforms regarding the content hosted on these sites, suggesting that they may be considering a more nuanced interpretation of where exactly this boundary lies.
In July of 2023, a federal judge in Louisiana issued an injunction against a long list of individuals in the Biden Administration, barring them from working with social media companies to exert any form of control over users’ “protected free speech.”
The lawsuit alleges that starting in 2018, members of federal agencies and later the Biden Administration urged social media platforms to “censor disfavored speech and speakers” and were “threaten[ing] adverse consequences” to those who refused “to increase censorship.”
It was alleged that those named in the lawsuit worked to suppress speech on social media related to: “the Hunter Biden laptop story prior to the 2020 Presidential election,” “the lab-leak theory of COVID-19’s origin,” “the efficiency of masks and COVID-19 lockdowns,” “the efficiency of COVID-19 vaccines,” “election integrity in the 2020 presidential election,” “the security of voting by mail,” “parody content” about those named in the suit, “the economy,” and “negative posts about President Biden.”
Almost immediately after the injunction was issued, President Joe Biden (D) issued a notice of appeal for the injunction.
The Fifth Circuit Court of Appeals later determined that officials likely violated the First Amendment by “coercing” and “significantly encouraging” social media companies to censor citizens’ protected free speech.
The Circuit Court did, however, constrain the breadth of the claims, as well as the reach of the injunction.
While the Circuit Court determined that the White House, the Surgeon General, the FBI, and the CDC “likely” violated the First Amendment by inappropriately communicating and collaborating with social media companies, it found that the NIAID, the State Department, and the CISA — who were also named in the lawsuit — were acting within their legal rights.
Shortly thereafter, the United States Supreme Court agreed to consider the case, with a majority of Justices granting a stay of the injunction pending their final ruling.
Justices Justice Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented, suggesting that the majority’s decision to grant the stay “will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.”
During Monday’s oral arguments, Brian Fletcher – U.S. Principal Deputy Solicitor General — spoke on behalf of the federal government, and Benjamin Aguiñaga – Solicitor General of Louisiana — presented on behalf of the states in this case.
While Deputy Solicitor General Fletcher argued that attempts by the government to persuade social media platforms to adopt certain content moderation policies is a permissible form of communication, Aguiñaga argued that the government’s actions in this case amount to unconstitutional coercion due to the repeated, persistent, and demanding nature of their correspondences
Questions over the issue of traceability played a key role throughout Monday’s proceedings, wherein the Justices probed whether or not the relevant communications between federal officials and social media companies in this case could be directly linked to the platforms’ decisions to remove certain content or viewpoints from their sites.
Redressability also factored into the conversation, wherein Aguiñaga made the case that there is an ongoing threat to users’ freedom of speech if the government is allowed to continue corresponding in this manner with social media sites, thus necessitating the injunction at the heart of Monday’s proceedings.
Fletcher, on the other hand, argued that in order for the injunction against the federal government to be warranted, it must be shown that its issuance would likely stop the platforms from moderating posts in this particular manner.
Discussions of the difference between — and the permissibility of — persuasion and coercion by the federal government under various circumstances also played a critical role in Monday’s oral arguments.
Aguiñaga argued that the federal government cannot tell a private entity that they should remove speech from their platform or coordinate such efforts with them, although they can share information with them about speech on their platforms, as well as promulgate speech of their own to counter that which is of concern.
Fletcher, on the other hand, made the case that coercion is distinct from significant encouragement or entanglement, suggesting that it would jeopardize the government’s ability to engage in everyday communications with private entities should these lines be blurred.
Earlier this year, the Supreme Court considered a pair of cases also concerning the relationship between free speech and social media.
At that time, the Justices considered the constitutionality of laws in Florida and Texas prohibiting social media platforms from censoring users’ content.
Central to both these cases was disagreement over whether or not a social media platform’s exercise of editorial judgement over users’ posts constitutes a form of speech that is protected by the First Amendment or if it represents a violation of users’ First Amendment rights.
[RELATED: SCOTUS Considers Constitutionality of Texas and Florida Laws Prohibiting Social Media Censorship]
As of now, it is not clear when the Justices will release their opinion for the case heard Monday, but all opinions are typically handed down before the Court recesses for the summer.
According to the Supreme Court’s website, unanimous decisions are typically released quickly, while those that generate a number of dissenting and concurring opinions may not be released until the last day of the term.
Click Here to Hear Monday’s Full Oral Arguments
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