Supreme Court leans against limiting Biden administration contacts with social media

WASHINGTON — A majority of Supreme Court justices on Monday appeared highly skeptical about claims the Biden administration crossed the line from persuasion to coercion when it told social media platforms to remove problematic content.

At issue is an injunction imposed by a federal judge, currently on hold, that would limit contacts between government officials and social media companies on a wide range of issues.

During oral arguments, justices across the ideological spectrum questioned whether the conduct of government officials was unlawful and whether plaintiffs that brought the lawsuit could even show they were directly harmed. Among the issues raised was the lack of evidence that government officials threatened punitive action if the social media companies failed to cooperate.

The case was one of two the court heard on Monday about the practice known as “jawboning,” in which the government leans on private parties to do what it wants, sometimes with the implicit threat of adverse consequences if demands are not met. Those challenging the government actions say that in each case there was a violation of the Constitution’s First Amendment, which protects free speech rights.

The second case involves claims that a New York state official inappropriately pressured companies to end ties with the National Rifle Association, the leading gun rights group.

In the social media case, Republican attorneys general in Louisiana and Missouri, along with five social media users, filed the underlying lawsuit alleging that U.S. government officials went too far in putting pressure on platforms to moderate content. The individual plaintiffs include Covid lockdown opponents and Jim Hoft, the owner of the right-wing website Gateway Pundit.

The lawsuit makes various claims relating to activities that occurred in 2020 and before, including efforts to deter the spread of false information about Covid and the presidential election. Donald Trump was president at the time, but the district court ruling focused on actions taken by the government after President Joe Biden took office in January 2021.

Several justices questioned whether the nature of the communications was problematic, with liberal Justice Elena Kagan noting that officials sometimes have fraught communications with journalists.

“This happens literally thousands of times a day in the federal government,” she said.

Chief Justice John Roberts, a conservative, similarly pointed out that the federal government is “not monolithic,” meaning that a complaint from one department is not necessarily a sign that another agency would take action if a post was not removed.

“That has to dilute the concept of coercion significantly doesn’t it?” he said.

Justice Amy Coney Barrett, another conservative, indicated that the argument made by Louisiana Solicitor General Benjamin Aguiñaga that mere encouragement by the government could constitute unlawful conduct “would sweep in an awful lot” of routine activity.

Liberal Justice Ketanji Brown Jackson asked Aguiñaga whether, under his interpretation of the law, it could be potentially unlawful for the government to ask social media platforms to take down a viral post encouraging teens to jump out of windows.

“Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” she said.

Aguiñaga said the government’s conduct could cross the line if it goes beyond expressing concerns about content and then asks for posts to be removed.

Conservative Justice Brett Kavanaugh also appeared skeptical of the plaintiffs’ arguments that there was coercion involved.

“What do you do with the fact that the platforms say no all the time to the government?” he said.

The justice who appeared most sympathetic to the plaintiffs was conservative Samuel Alito.

The evidence showed that White House officials and others suggested they were on the “same team” as the social media companies, demanded answers and “cursed them out” when they did not get the responses they wanted, Alito said.

“There is constant pestering of Facebook and some of the other platforms,” he added.

Alito also referred to reporters present in the courtroom.

“I cannot imagine federal officials taking that approach to the print media representatives over there. If you did that to them, what do you think the reaction would be?” he said.

Last July, Louisiana-based Judge Terry Doughty barred officials from “communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”

The New Orleans-based 5th U.S. Circuit Court of Appeals narrowed the scope of…