WASHINGTON — Most of the Supreme Court’s justices on Monday seemed to question states’ arguments that the Biden administration coerced social media giants to regulate Covid-19 content and thereby violated Americans’ freedom of speech.
The case, Murthy v. Missouri, centers on whether Biden officials overstepped their authority when asking companies like Twitter and Facebook to remove or downgrade content flagged as Covid-19 misinformation, including posts questioning vaccine safety, shutdown measures and the virus’ origins.
Biden’s lawyers argue they were well within their rights to flag misinformation and use the White House’s “bully pulpit” to press social platforms to regulate false or harmful information. The lawyer arguing for plaintiffs, Louisiana Solicitor General J. Benjamin Aguiñaga, said that amounted to coercion and censorship of Americans including an Louisiana anti-lockdown activist and three who co-signed a paper on herd immunity, who joined the lawsuit.
Several of the justices, including conservative appointees, seemed to poke holes in the plaintiffs’ assertion that officials’ messages to companies like Facebook, YouTube, and Twitter, now known as X, amounted to coercion, which would run afoul of federal law. They also questioned whether those social media users were directly harmed by officials encouraging those restrictions.
“I have such a problem with your brief, counselor,” Justice Sonia Sotomayor said to Aguiñaga. “You omit information that changes the context of some of your claims; you attribute things to people who it didn’t happen to.”
Aguiñaga said he apologized if “our brief was not as forthcoming as it should have been.”
Besides the latest bout in the question of free speech on the internet, the case could have sweeping ramifications for public health officials’ efforts to tamp down on medical misinformation.
Many of the justices’ questions revolved around when the government can encourage social media platforms to take down dangerous or false posts, and when they can’t. Those included a wide array of hypotheticals, from Justice Amy Coney Barrett asking about the doxxing of a public official to Justice Ketanji Brown Jackson imagining a viral trend that leads to adolescents harming themselves.
Aguiñaga replied in part that the issue is government officials persuading a platform to take down a third party’s speech, in this case that site’s users.
At times justices including Brett Kavanaugh drew comparison between federal officials’ interaction with social platforms and their regular communications with news outlets, where they also regularly seek to influence and encourage coverage.
Justice Department lawyer Brian Fletcher also pointed to the companies’ insistences that they were actively working to manage misinformation during this time. Meta CEO Mark Zuckerberg has spoken publicly about efforts to manage posts on Facebook and Instagram.
“If we see harmful misinformation on the platform, then we take it down. It’s against our policy,” he told CBS in 2021.
Justice Samuel Alito appeared most sympathetic to the plaintiffs and at one point urged his colleagues to focus on the case at hand, rather than hypothetical situations. Alito, along with Justice Clarence Thomas, dissented last year when the court suspended a lower court’s injunction on government interactions with platforms about content.
However several of the other judges seemed unconvinced Monday that White House and public health officials coerced tech giants.
“I don’t see a single item in your briefs that would satisfy our normal tests,” Justice Elena Kagan said.
The court could deliver a ruling or turn the case back to lower courts by this summer.