Is the Supreme Court troubled by government pressure to cause social media outlets to censure speech?
Oral argument suggests the answer is "not very."
In the past year, the Supreme Court has considered four cases that raise the issue of online speech. The last of these, Murthy v. Missouri, was argued earlier this week.
In that case, the plaintiffs complain that numerous federal agencies and officials engaged in censorship that targeted conservative-leaning speech on topics such as the the origin of Covid, mask and vaccine efficacy, the 2020 presidential election, and election integrity. They contend that these agencies and officials used threats of regulatory action, such as reforming Section 230 of the Communications Decency Act, to induce social media platforms to suppress content, thereby violating First Amendment rights.
A federal district in Louisiana granted the plaintiffs’ motion for a nationwide preliminary injunction prohibiting the federal government from meeting with social media companies or otherwise seeking to influence their content-moderation policies. The U.S. Supreme Court granted the government’s motion for an emergency stay and granted certiorari to review the case on the merits.
I listened to the oral argument and was unhappy with the way it went. In questioning the attorneys, only Justice Alito seemed at all concerned with the government’s attempts to curb speech on key issues in what has become the real public square. (I assume that Justice Thomas shares the concern.)
Justices Kagan and Kavanaugh seemed to think this is no big deal. If her questions are a reliable guide, Justice Jackson thinks this sort of speech suppression can be a good thing.
When Justice Alito said he couldn’t imagine government officials pestering the New York Times the way they did Facebook, Justices Kavanaugh and Kagan disagreed. Kagan said, “Like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.”
Right. But this experience is meaningless in the context of the case before the Court for three reasons.
First, I doubt that she or Kavanaugh pestered the press the way government officials did during the pandemic. Here is how Alito described that pattern of pestering:
[W]hen I read all of the emails exchanged between the White House and other federal officials on Facebook in particular but also some of the other platforms, and I see that the White House and federal officials are repeatedly saying that Facebook and the federal government should be partners, we're on the same team, officials are demanding answers, I want an answer, I want it right away, when they're unhappy, they curse them out.
There are regular meetings. There is constant pestering of -- of Facebook and some of the other platforms and they want to have regular meetings, and they suggest rules that should be applied and why don't you tell us everything that you're going to do so we can help you and we can look it over.
If Kagan and Kavanaugh ever engaged in this sort of behavior, they should resign from the Supreme Court.
Second, the government can exercise far more power over social media companies than it can exercise over the New York Times. As Alito said, after reading about all the pressure the government applied:
I thought: You know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and it's -- to mix my metaphors, and it's got these big clubs available -- available to it, and so it's treating Facebook and these other platforms like they're subordinates.
Given the comparative size of these government clubs, any pestering of social media companies is threatening in ways that pestering newspapers is not.
Third, and most importantly, there’s an obvious distinction between pressuring a newspaper not to write something and pressuring Facebook not to publish something someone else wrote. Newspapers can be expected zealously to defend their right to free speech. Facebook cannot be expected zealously to defend the free speech rights of third parties — especially conservative third parties.
Chief Justice Roberts also seemed to want to minimize the threat posed by government officials pressuring social media companies:
I suspect, when there's pressure put on one of the platforms or certainly one of the other media outlets, they have people they go to, probably in the government, to say: Hey, they're trying to get me to do this, and that person may disagree with what the government's trying to do. [The federal government] is not monolithic. And that has to dilute the concept of coercion.
But if top-level White House officials are trying to get media platforms to suppress content, there will be no one government who can cause these officials to back down, and probably no one who will even want to try.
As the Chief Justice’s comment indicates, the concept of coercion was prominent at oral argument. Brian Fletcher, who argued the case for the government (and was excellent, I thought) maintained that, notwithstanding what Alito called the government’s Section 230 “big club,” all federal officials did was try to persuade (or at most encourage) social media platforms to “moderate content” more judiciously.
But Justice Jackson seemed to believe that government coercion during the Covid crisis was just fine. She cited the “compelling interest of the government to ensure. . .that the public has accurate information in the context of a once-in-a-lifetime pandemic. “
Reflexive statist that she is, Jackson seemed to discount the fact that the government has no monopoly on accurate information, especially in the context of a once-in-a-lifetime event when everyone is shooting in the dark. In these unique circumstances it was particularly important not to censure (or moderate) free speech on the subject.
It’s no exaggeration to say that, at least in the first months of the pandemic, no one really knew much of anything. That’s what made the dogmatism coming from both the left and right so sickening. But it was only the government that had the power to impose its dogmatism on social media platforms, thus tilting the field strongly in favor of one contested viewpoint.
Now, we know that school closings were a big mistake. And it now seems more likely than not that the pandemic was the result of a lab leak in China, a view the government wanted to silence in 2020.
As to the efficacy of masks and vaccines, the former remains hotly disputed. Vaccines are viewed as effective (correctly, I think), but the government oversold the extent of the benefit.
Far from ensuring that the public had accurate information, the government at times pushed highly dubious information and did its best to prevent the public from hearing the other side.
All of this appears to have been lost on Justice Jackson. Also lost on her, it seems, is the fact that Donald Trump has something like a 50 percent chance of becoming our next president.
What will Jackson do in the event of a challenge to “encouragement” of social media platforms by Team Trump to push his line and “moderate” those who dissent from it? Don’t be surprised if she suddenly finds that there’s no pandemic (or wartime or national emergency) exception to the First Amendment.
In criticizing the Justices’ questions and comments, I don’t mean to suggest that Murthy is an easy case. It isn’t.
For one thing, there are legitimate questions about the sweep of the district court’s injunction. Furthermore, the lines between coercion, encouragement, and attempts at persuasion are not bright.
Whichever way the case goes, I think it’s crucial that the opinion of the Court be written very carefully. Maybe it will be. However, the oral argument left me with no confidence in that outcome.
Finally, I should note that there’s a question as to whether the plaintiffs have standing to bring the case. Justice Kagan, for one, seemed skeptical that they do.
I didn’t form a view as to which side has the better case on standing. But if my fears about what the decision will look like are legitimate, it might be better for free speech (at least temporarily) if the Court decides plaintiffs lack standing, and leaves the matter there.
I predict that Roberts will work up a majority that will decide the case on an extremely narrow basis ensuring that no precedent can be taken from the case. Alito will write a sharp dissent or concurrence probably joined by at least Thomas and maybe Gorsuch that states that White House Pressure on social media companies to censor speech amounts to a first amendment violation inherently. Jackson will write a sharp either dissent or concurrence that holds that government pressure on social media company does not implicate the first amendment at all. I'm not clear whether the majority will go with the plaintiffs or defendants but whichever way it will be so narrow as to frustrate everybody. That's the Roberts way.
White House pressure on social media companies is an outrageous and shameful abuse of power and unequivocally antithetical to First Amendment protections of free speech. Why is SCOTUS so timid and impotent on this issue?