SCOTUS Considers Government Censorship of Social Media

The Biden administration is appealing the Fifth Circuit Court of Appeals ruling that found officials had violated the First Amendment by pressuring the companies to remove posts including the validity of the 2020 election, COVID-19 policies, abortion, and gender discussions.

U.S. Principal Deputy Solicitor General Brian Fletcher opened the argument for the Biden administration stating the Fifth Circuit “mistook persuasion for coercion” and that persuasion is not a First Amendment violation. He further stated the government at times has a right to a “bully pulpit” and that there was nothing wrong with persuading social media companies to moderate content, which is something the companies “are legally entitled to do.”

However, Louisiana Solicitor General Benjamin Aguiñaga made the counter argument that the government used the “bully pulpit” in this case to “wholly eliminate” viewpoints from public discourse. He argued when the government uses its stature and ability to pressure companies to censor the free speech of Americans then it turns from persuasion to deliberate interference with the First Amendment.

Aguiñaga stated, “The government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms in backrooms shielded from public view is not using the bully pulpit at all. That’s just being a bully.”

The Justices focused heavily on what conduct fell inside the scope of illegal coercion or legal persuasion. For instance, Justice Neil Gorsuch cited Joe Biden’s public statement that social media companies were “killing people” with misinformation during the pandemic and asked if that was “coercive.”

While Fletcher argued Biden’s statement was “exhortation, not threat,” Aguiñaga stated that this type of “unrelenting pressure by the government” coerced social media companies to “routinely cave” and “suppress the speech of millions of Americans.”

Justice Ketanji Brown Jackson raised a “worried” concern about drawing a line between “compulsion and encouragement.” She noted that “some might say” the government has the duty to combat issues and protect citizens and asked about whether the government’s “duty can manifest itself in encouraging or even pressuring platforms to take down harmful information.”

Justice Jackson asked, “The line is, does the government pursuant to the First Amendment have a compelling interest in doing things that result in restricting the speech in this way?”

While Aguiñaga stated that the government should interact with the media when there are dangerous issues for society, he also stressed they should do so in compliance with the First Amendment.

Justice Samuel Alito pointed out how the documented communications between the government and social media companies presented an unusual situation. He noted that the repeated communications from the White House and federal officials to the companies involved the notion of being “partners,” yet consisted of “constant pestering” to comply with governmental demands.

“I cannot imagine federal officials taking that approach to print media representatives,” stated Justice Alito. “The only reason why this is taking place is because the federal government has got Section 230 and anti-trust in its pocket…and it’s got these big clubs available to it. And so it’s treating Facebook and these other platforms like their subordinates.”

While Fletcher argued the emails reflected a partnership relationship and the social media companies told the government “no” at times, Aguiñaga concluded that censorship has no place in democracy.

Aguiñaga stated, “Whether you call this coercion…encouragement…promotion, [or] you call it inducement, whatever it is, if the government is attempting to abridge the speech rights of a third party, that has to be unconstitutional, because that falls within the plain text of the First Amendment.”

The Supreme Court will make a final decision by the end of June 2024.

In September 2023, the U.S. Fifth Circuit Court of Appeals ordered the Biden administration to limit its communications with social media companies as to not affect the companies’ decision-making processes about posted content. However, when the U.S. Supreme Court agreed to take the case last October, it temporarily blocked the Fifth Circuit’s order for the time being.

Liberty Counsel filed an amicus brief to the High Court which argues that the biggest threat to our First Amendment right to free speech today is the government and big companies working together to remove content they disagree with to “stifle dissent” against “official” government narratives.

Liberty Counsel Founder and Chairman Mat Staver said, “The government censoring viewpoints it disagrees with is a direct affront to free speech and offensive to the First Amendment. The government also cannot use third-party media companies to violate the constitutional rights of individual Americans. Censorship has no place in a free society.”