Less than one month after hearing oral arguments in a pair of challenges to controversial laws in Texas and Florida that would regulate how large social media companies control content posted on their sites, the Supreme Court will hear argument in a challenge by the Biden administration to a federal court’s order that would limit the ability of government officials to communicate with social media companies about their content moderation policies.

Government agencies have, for years, encouraged social media companies to restrict harmful or illegal content, from terrorism to human trafficking. But following efforts by the Biden administration in 2021 to encourage companies to restrict misinformation about the COVID-19 vaccine, content that Surgeon General Dr. Vivek Murthy called “an urgent threat to public health,” challengers said the government had gone too far. The government’s suggestions to tech giants amounted to violations of users’ free speech rights, they say.

Defending the communications, sometimes referred to as “jawboning,” the Biden administration contends that the U.S. Court of Appeals for the 5th Circuit in New Orleans “imposed unprecedented limits on the ability of the President’s closest aides to speak about matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on CDC’s ability to relay public-health information.” But two states and several individuals whose posts on social media were removed or downgraded counter that the “government can speak freely on any topic it chooses, but it cannot pressure and coerce private companies to censor ordinary Americans.”

Background

The case was filed in May 2022 in federal court in Louisiana by two states with Republican attorneys general, Missouri and Louisiana, as well as five individual social media users, including epidemiologists and physicians. The individual challengers contend that their social media posts on platforms such as Facebook, YouTube, and X (formerly known as Twitter), and in particular posts related to COVID-19 and the 2020 election, were removed or downgraded, at the government’s direction. Missouri and Louisiana claim that both they and their residents have been harmed by the social media platforms’ suppression or censorship of their speech.

On July 4, 2023, U.S. District Judge Terry Doughty agreed with the challengers that federal government officials had violated the First Amendment by “coercing” or “significantly encouraging” the content moderation decisions of social media platforms, thereby transforming those decisions into actions by the government.

Doughty issued an order that limited communications between the White House and several other government agencies with social media companies about virtually all content.

The Biden administration went to the 5th Circuit, which largely upheld Doughty’s order. It characterized the conduct at the center of the case as a “coordinated campaign” “orchestrated by federal officials that jeopardized a fundamental aspect of American life.” But the court of appeals narrowed Doughty’s order limiting communication to a smaller group of officials, including the White House, the Surgeon General, the CDC, and the FBI.

The Biden administration appealed next to the Supreme Court on Sept. 14, asking the justices to freeze Doughty’s order. More than a month later, the justices granted that request and agreed to hear oral argument on the merits of the dispute.

Three justices – Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch – dissented from the court’s decision to temporarily block Doughty’s order, calling it “unreasoned” and “highly disturbing.”

“Standing” to sue

As the case comes to the Supreme Court, there are three separate questions before the justices. The first is whether the states and individual challengers have a legal right to sue, known as standing, at all.

The Biden administration maintains that they do not. The individual challengers, the government says, have not shown that earlier decisions by social media platforms to remove or deprioritize their posts can be attributed to the government, rather than the platforms’ own independent decisions implementing their content moderation policies. Indeed, U.S. Solicitor General Elizabeth Prelogar notes, the actions about which the individual challengers are complaining “began long before most of the government conduct at issue here.”

And even if they had made such a showing, Prelogar writes, that still would not give them a legal right to seek an order barring the government from communicating with social media platforms in the future. To receive such an order, the government argues, the challengers would have to show that they “face an imminent threat of content moderation that the platforms would not undertake but for the government’s challenged conduct.” But, the government contends, they have not shown that there are any ongoing communications between the government and the platforms that will lead to moderation decisions about the challengers’ content that the platforms would not have made anyway.

Nor do Louisiana and Missouri have a right to sue, the government continues. Not only can the states not rely on past injuries to establish standing, for the same reasons as the individual challengers, but they cannot assert a “right to listen” to their residents on social media. The Supreme Court has recognized such a right only in cases involving individuals who already had a connection to the speaker, the government asserts, “and thus suffered some identifiable and particularized harm” from the restrictions on someone else’s speech. By contrast, the government cautions, the 5th Circuit’s “all-encompassing” theory would allow anyone to go to court “to challenge any alleged abridgement of the First Amendment rights of any speaker whose speech she ‘would otherwise hear.’”

And in any event, the Biden administration concludes, states do not have any rights under the First Amendment, which is intended to protect private individuals from the government.

The challengers counter that there is a “clear connection” between communications by government officials pressuring platforms to suppress posts on particular topics or to adopt new content moderation policies and decisions by social media platforms to remove or deprioritize their posts. One plaintiff, they note, was “censored” after she re-published a post by Robert F. Kennedy, Jr., which argued that former Fox News host Tucker Carlson had been fired for “acknowledging that the TV networks pushed a deadly and ineffective vaccine to please their Pharma advertisers.”

The states have a right to sue for two reasons, they contend. First, they write, they are injured when posts by state officials are removed or deprioritized.

But the First Amendment also shields a separate right to “speak and listen.” Specifically, the challengers explain, when the government pressures social media platforms to remove content by other speakers – such as Kennedy or Tucker Carlson – or on topics like vaccines and elections, that violates their right to receive information from those speakers or about those topics. And the government’s communications similarly disrupt the states’ “sovereign interest in being able to hear the undistorted voices of their own citizens, which is crucial to formulating policies and messages that are responsive to their citizens’ actual concerns.”

Finally, the challengers argue, they will be injured in the future if the lower court’s order is lifted. Without an order in place to bar the government from pressuring social media platforms from removing or deprioritizing their content, the challengers say, they will have to watch what they say online. And the order will also “prevent any continued maintenance and enforcement of such penalties.”

The merits – is the government violating the First Amendment?

The Biden administration acknowledges that the First Amendment prohibits the government from punishing someone because of their views or from trying to use its power to suppress those views, and the government cannot try to get around that restriction by compelling a private party to do so instead. “But so long as the government seeks to inform and persuade rather than to compel,” the government stresses, “its speech poses no First Amendment concern — even if government officials state their views in strong terms, and even if private actors change their speech or conduct in response.”

In this case, the government emphasizes, the court of appeals has indicated only that White House officials “threatened platforms with adverse consequences if the platforms failed to moderate content related to COVID-19.” The government acknowledges that during the pandemic, when the Biden administration was trying to encourage Americans to be vaccinated and “viewed the platforms as a significant vector for the spread of harmful falsehoods,” government officials “publicly and privately criticized the platforms for what the officials perceived as a lack of transparency and a failure to live up to the platforms’ commitments.”

But those communications were not “coercive threats” but instead a “back-and-forth” between the government and the social media platforms. And here as elsewhere, the government contends, the court of appeals does not link statements by government officials to the actual removal or demotion of the challengers’ posts. In fact, the government notes, the platforms often declined to remove content that the government had flagged as problematic, without any retaliation from the government.

The challengers maintain that the government has “deeply insinuated” itself and is “deeply entangled in the platforms’ policies and independent decisionmaking.” Government officials, they say, make “relentless” demands of the social media platforms that, if unheeded, escalate to “pressure,” including threats of antitrust action against the platforms. And for their part, the challengers add, the platforms respond with “total compliance,” removing content and deplatforming users and accounts who post misinformation related to COVID-19 and vaccines.

The federal government also conspired with the platforms to remove or deprioritize speech. There were, the challengers say, “numerous, recurring, and ongoing meetings” at which government officials “discussed particular ideas and speakers with platforms, followed promptly by platforms’ suppression of those ideas and speakers.”

The terms and scope of the preliminary injunction

The Biden administration insists that the lower court’s order prohibiting communications between government officials and social media platforms is not necessary to prevent injury to the challengers. The court of appeals, the administration says, did not point to any evidence to support its conclusion that the challengers’ First Amendment rights would be violated without such an order.

And in any event, the administration adds, the order sweeps too broadly, because it covers communications with all social media platforms, including platforms that the challengers do not use, about their content moderation policies. A narrower order could protect the challengers against violations of their First Amendment rights, the administration tells the justices.

The lower court’s order will harm the government and the public, the government continues, because it could “chill vital governmental communication” – for example, causing law enforcement officials to delay or forgo communications about national security or public safety. And it is particularly troublesome, the government concludes, when the order bars the government from “coercing” or “significantly encouraging” platforms to take action with regard to protected speech, because (as this case shows) of the lack of consensus about what those terms mean.

The challengers push back against each of the Biden administration’s arguments about the preliminary injunction. They insist that the challengers are likely to be harmed by the government’s continuing communications with social media platforms. They point to “ongoing efforts to pressure platforms to adopt censorship policies affecting both” the challengers’ “own speech and the speech of those whom they follow.”

The challengers reject the government’s contention that the injunction could chill important government communications. They stress that the lower court’s order doesn’t prohibit any legitimate government speech. Instead, they say, it only bars the government from coercing or significantly encouraging speech. Government officials can still express their opinions about the underlying content, such as public health; they simply can’t pressure the platforms to remove or deprioritize other people’s speech.

And the lower court’s order, the challengers conclude, correctly applies to all social media platforms because the government agencies covered by the injunction meet regularly with all major social media platforms, and content is often cross-posted on several different platforms.

Supporting briefs

Not surprisingly, the dispute has drawn a wide array of “friend of the court” briefs. A brief by 22 states and the District of Columbia, filed in support of the Biden administration, takes the opposite tack from Missouri and Louisiana. Those states contend that the 5th Circuit’s decision would squash virtually all government communications with social media platforms aimed at protecting their residents’ health and safety. “[M]aintaining open lines of communication between the government and social-media companies on topics such as extremist violence, child safety, and consumer protection is mutually beneficial, furthers the public interest, and fully comports with the First Amendment,” they tell the justices.

On the other hand, the Rutherford Institute, a conservative civil liberties group, urges the justices to leave the 5th Circuit’s order in place. It writes that the question before the court is not limited to issues like COVID-19 or Hunter Biden’s laptop but is instead “far more pervasive and requires a deeper view to see just how serious the threats are to the First Amendment liberties of all Americans.”

In a brief that did not support either side, the Knight First Amendment Institute encourages the court to issue a narrow decision. The group acknowledges that the power of social media platforms “to dictate what can be said and what will be heard online poses a serious threat to public discourse and, by extension, to our democracy.” And because there are relatively few major platforms, the group notes, it is easier for government officials to influence what appears online. But, the group warns, “it would be a mistake for the Court to contort this doctrine to solve what is, in reality, a problem of excess concentration and lack of competition,” which can be better addressed through other means, such as transparency and privacy laws.

Another free speech group, the Foundation for Individual Rights and Expression, contends in its brief that the states’ arguments in this case are correct, “even if they advocate precisely the opposite” in the challenges to the Texas and Florida laws while also “simultaneously making threats of their own to suppress the speech of advocacy groups and other businesses.” “Getting the correct answer in this case is extraordinarily important given the interconnected mosaic of First Amendment issues the Court is considering this Term,” FIRE writes.

This post is also published on SCOTUSblog.