Justices in Oral Argument Agree Government Can Censor Over Public Safety Issues

The federal government can encourage and even coerce social media platforms into moderating content without violating the First Amendment when there’s compelling public interest, conservative and liberal Supreme Court justices agreed Monday.

The court heard oral argument in Murthy v. Missouri (docket 23-411) (see 2403140059). Republican attorneys general in Louisiana and Missouri are challenging the government’s petition to vacate an injunction that would block the White House and four federal agencies from coercing social media platforms to moderate content. Several justices suggested that if the injunction is granted, it could have a chilling effect on federal officials’ normal interactions with platforms and media.

The states are ignoring the fact that the federal government has a duty to protect public safety, said Justice Ketanji Brown Jackson. For example, the government wouldn’t violate the First Amendment if it told a platform to suppress content related to a social media challenge in which users are telling children to jump off buildings, she said. Chief Justice John Roberts also voiced skepticism that such suppression might be considered government coercion when there’s such a significant public safety threat.

Meanwhile, Justices Elena Kagan and Brett Kavanaugh said it’s common for government officials to communicate with media companies over factual inaccuracies in news stories. This happens “thousands of times a day” with the federal government, said Kagan. It’s not unusual, either, for government officials to contact media outlets about potential national security or defense-related impacts from news publication, said Kavanaugh. There are instances when the government can encourage, and even “coerce,” media companies because there’s “compelling interest,” said Jackson.

Louisiana agrees, said the state’s Solicitor General Benjamin Aguinaga. However, the federal officials in this case have engaged in viewpoint censorship without any compelling public safety justification, he said. Emails between Meta Global Affairs President Nick Clegg and White House officials provide good examples of how Facebook adjusted its content moderation policies in response to “unrelenting” pressure from the government concerning COVID-19-related content, said Aguinaga. The government has no right to tell platforms to violate U.S. citizens’ constitutional speech rights, said Aguinaga.

Both the 5th U.S. Circuit Appeals Court and a district court found a direct link between White House officials’ communications and the restriction of Facebook accounts, Justice Samuel Alito noted. The Supreme Court doesn’t “usually reverse findings of fact that have been endorsed by two lower courts,” said Alito. He described how emails show the two sides discussing a content moderation “partnership” and the White House’s displeasure with certain content moderation decisions regarding COVID-19. There are examples of White House officials threatening the platforms with changes to antitrust policies and Communications Decency Act Section 230 if the platforms didn’t moderate content, said Alito. He said it’s unlikely the federal government could take the same approach with print media and unfavorable news coverage.

The federal government can’t use “coercive threats to suppress speech,” but it can speak for itself by informing, persuading or criticizing private speakers, said DOJ Deputy Solicitor General Brian Fletcher. It’s only coercion if there’s a threat of adverse government action, and in this case, the officials were providing information on COVID-19, said Fletcher. He described the partnership as an “open door” of communication in which the platforms were motivated to do their part in informing the public.

The White House can legally persuade a private party to do something they’re legally entitled to do, like police their platforms, said Fletcher. Public officials can, for example, call for universities to be “vigilant” against anti-semitism when there’s a major attack on Israel, he said. That’s not direct content moderation, he argued: The White House is allowed to influence entities making independent judgments on content moderation.

The easiest way to resolve the case is to rule there’s no standing because the states haven’t demonstrated the potential for future injury due to imminent threats from the government, said Fletcher. Aguinaga disagreed, saying evidence shows companies continually departed from content moderation policies due to “unrelenting government pressure.”