The importance of the issue was underscored by the court’s decision Friday to accept the case for oral argument this term, which would mean a ruling before end of June.
As is customary in emergency orders, the majority did not explain its reasoning for granting the administration’s request. But conservative Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch dissented from the decision not to leave the lower court order in place, calling the development “highly disturbing.”
The lawsuit against the federal government, initiated by Republican attorneys general in Louisiana and Missouri, raises significant and novel questions about how free speech protections apply online, with implications for how government officials interact with social media companies and communicate with the public on the popular platforms.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, called the case a significant opportunity for the Supreme Court to resolve an increasingly urgent and relevant issue.
The justices have said “little about how lower courts should distinguish permissible persuasion from unconstitutional coercion,” Jaffer said. “These are momentous, thorny issues, and how the court resolves them will have broad implications for the digital public sphere.”
Missouri Attorney General Andrew Bailey (R) called the administration’s social media lobbying “the worst First Amendment violation in our nation’s history.”
“We look forward to dismantling Joe Biden’s vast censorship enterprise at the nation’s highest court,” he said in a statement.
In asking the Supreme Court to intervene in the matter, Solicitor General Elizabeth B. Prelogar wrote in a court filing that the order issued by an appeals court last month would impose “unprecedented limits” on the administration’s ability to “use the bully pulpit to address matters of public concern” and call attention to potentially harmful online content.
The lawsuit claims government officials censored protected political speech by urging tech companies to modify posts involving elections and the coronavirus vaccine. Conservatives have long argued that liberal employees inside tech companies are working with Democratic officials to silence conservative views when making content-moderation decisions — a claim that tech companies and government officials dispute.
“Federal interference fundamentally transforms online discourse, rendering entire viewpoints virtually unspeakable on social media,” the attorneys general told the high court in a filing that urged the justices to let the appeals court order take effect.
In July, a District Court judge in Louisiana sided with the states and issued a sweeping injunction that bars thousands of federal employees across a range of government departments and agencies from improperly pressuring or coercing tech companies to remove specific content.
The conservative U.S. Court of Appeals for the 5th Circuit last month limited that order to the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI.
The three-judge appeals court panel said the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” The panel also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
The opinion details White House efforts to pressure social media companies to remove misinformation about the coronavirus pandemic. Officials “were not shy in their requests,” calling for posts to be removed “ASAP” and appearing “persistent and angry,” according to the ruling. It describes a contentious period in July 2021, which reached a boiling point when President Biden accused Facebook of “killing people.”
“We find, like the district court, that the officials’ communications — reading them in ‘context, not in isolation’ — were on-the-whole intimidating,” the judges wrote.
The panel subsequently broadened its order this month to extend to government officials with the Cybersecurity and Infrastructure Security Agency, saying those officials probably acted improperly in trying to coordinate with Silicon Valley to protect elections from online hoaxes.
The First Amendment protects against government infringement on speech. Officials are permitted to tell a company when content on its website is problematic or misleading, and to advocate for administration policies. But officials cannot coerce private companies to take action on the government’s behalf or threaten to punish people for expressing different views. The question for courts to unravel is how to distinguish between permitted government speech and prohibited coercion or threats.
Government officials routinely engage with companies like Facebook and YouTube. The FBI, for instance, shares information with platforms about accounts that appear to be used by covert foreign actors to influence the American public. Tech companies and the government expanded efforts to fight against disinformation online after Russian interference on the platforms during the 2016 election. But such content moderation efforts have become embroiled in the nation’s culture wars, and many companies are now cutting back on the number of employees who do such work.
In its request to the Supreme Court to temporarily block the 5th Circuit’s order while it is appealed, the Biden administration warned of “drastic consequences” if the limits on government officials are allowed to take effect. “There is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion,” Prelogar wrote.
Alito said in his five-page dissent on Friday that his colleagues should have allowed the lower court’s ruling to stand while the high court resolves the matter. Alito said he doubted the type of “bully pulpit” speech Prelogar worried about would be prohibited if the 5th Circuit injunction were in effect. He noted that Biden would not be subject to the appeals court order, which applies only when the government crosses the line to coerce or control the free speech rights of others.
“Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” wrote Alito, who was joined by Thomas and Gorsuch. “At this time in the history of our country, what the Court has done, I fear, 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.”
The Supreme Court has also agreed to review a separate pair of cases about removing controversial material on social media platforms. The Biden administration has asked the court to reverse a decision upholding a Texas law barring companies from taking down posts based on political ideology. That ruling is at odds with a decision from a different appeals court, which blocked a similar Florida law from taking effect.
The case accepted on Friday is Murthy v. Missouri.
