President Joe Biden took office in January 2021 amid growing distrust of coronavirus vaccines. As former press secretary Jen Psaki said in a press conference on May 5, 2021, the administration believes that Facebook and other social media companies are “amplifying untrustworthy content, disinformation, and misinformation.” “There is,” he accused.
As a result, the Biden administration has launched a pressure campaign to persuade private companies such as Meta, Twitter (now known as X), and YouTube owner Google to withhold certain information.
In one example, former White House Digital Strategy Director Rob Flaherty sent a letter to Facebook, citing a March 2021 Washington Post article that accused Facebook of allowing misinformation to spread. It asked the company to send a detailed report related to the allegations.
“I'm not going to mess around with you. Mr. Flaherty is deeply concerned that your company's services are one of the biggest contributors to vaccine hesitancy, adding: You're not playing shell games with us when we ask what's going on. ”
“Everything would be a lot easier if you just spoke up,” Flaherty wrote in the initial case documents filed with the Supreme Court.
Facebook said in its response: …We are also working hard to bring you the most useful information possible. The next day, the White House asked Mehta to develop censorship policies to stop the spread of anti-vaccine content.
Supreme Court case focuses on how government and Big Tech should communicate
On Monday, the Supreme Court heard oral arguments in Marcy v. Missouri. The lawsuit pits two former Republican attorneys general, Eric Schmidt of Missouri and Jeff Landry of Louisiana, against social media who allege their posts related to the pandemic and the 2020 presidential election were censored and downgraded. Submitted by 5 media users.
Last year, a lower court upheld Schmidt and Landry's argument that these arbitration decisions violated the First Amendment. U.S. District Court Judge Terry Doty ordered multiple federal officials and agencies, including Surgeon General Vivek Murthy, White House Press Secretary Karine Jean-Pierre, and all employees of the Justice Department and FBI, to remove content. filed for an injunction barring social media companies from contacting them seeking , according to Politico. The Court of Appeals upheld these limitations.
At the heart of the case is the government's relationship with Big Tech and whether the First Amendment prohibits jaw boning, according to the Knight First Amendment Institute at Columbia University. – Arming private platforms and changing content moderation practices. ”
The Supreme Court's decision, expected in June, will set an important precedent for the future of free speech in the era of digital town squares and the role of government in curbing disinformation.
Does the government have the right to speak?
Brian Fletcher, the Biden administration's chief solicitor general, said during oral arguments that the government cannot threaten to strengthen free speech rights, but that it cannot “provide information, persuade or criticize civilian speakers.” They have the right to express their opinions on behalf of others.”
He cited the 1963 Bantam Books Co. v. Sullivan case, which involved a regulatory commission pressuring bookstores to remove morally “objectionable” titles that led to self-censorship. In this case, the Supreme Court ruled against the commission.
Fletcher said Marcy v. Missouri is also about “a fundamental distinction between persuasion and coercion,” but it's not about social media users who claim to have a negative influence on speech, but rather about “an attempt to audit the entire executive branch.” “It concerns a group of plaintiffs who Branch communications with and about social media platforms; ” He also insisted that the Biden administration has not threatened to take adverse action against the government.
Justice Clarence Thomas asked what was the constitutional basis for government speech. Fletcher responded that “the government has the right to speak for itself,” but that this is not a feature of the First Amendment, but of “our constitutional democracy.”
Injunctions by lower courts have made it difficult for agencies like the FBI to contact social media companies without being deemed coercive. This is because the FBI has significant authority in matters related to national security. Osama bin Laden trended on TikTok last year.
Justice Samuel Alito pointed to the “incessant harassment” Facebook faces through email and regular meetings, and asked Fletcher if the Biden administration would treat major newspapers and news organizations the same way. Fletcher said “it's not unusual for conversations to take place between governments and the media,” noting that these conversations took place “during a once-in-a-lifetime pandemic.”
Can the government suppress speech for unavoidable reasons?
Ultimately, Fletcher argued that the challengers have not proven that the deleted social media posts were the direct result of government action.
“When a government persuades a private entity not to distribute or promote the speech of others, that is not censorship. It is persuading a private party to do something to which they are legally entitled. ” he said.
But Louisiana Attorney General Benjamin Aguignaga said the 20,000-page records reveal “relentless pressure” by the Biden administration that ultimately suppressed “the speech of millions of Americans.” refuted the claim.
Aguignaga said the administration was “eerily” considering its options and accused the platform of “playing a complete Calvin Ball and hiding the ball.”
Regarding coercion, he said, “Governments cannot directly induce, encourage, or incentivize private actors to do anything that the government itself cannot directly do.”
Justice Kentangi Brown Jackson countered that the government can suppress speech in some cases if there is a compelling reason to do so.
Aguignaga argued that communications between the White House and social media platforms show that tech companies are going “above and beyond what their policies require.”
At one point, Justice Sonia Sotomayor, who questioned Mr. Aguignaga about the proof of injuries sustained by the plaintiffs, said there were problems with Mr. Aguignaga's brief, which included “parts of your claim.'' He claimed that “information that changes the context of the situation” was being conveyed.
“You attribute things to people that didn't happen to you,” Sotomayor said. “I don't see how you can prove direct injury in any way.” Aguinaga apologized for the lack of clarity.
Difference between coercion and encouragement
Justice Amy Coney Barrett also remained perplexed. Speaking about the government's pressure on the New York Times and the Washington Post not to publish opinion articles, Aguignaga said that the pressure on opinion writers to significantly He withdrew, arguing that encouragement alone was not enough. Mr. Sotomayor also addressed Mr. Aguignaga's contention that the converged social media world is a different story.
“As a matter of law, it seems to me that we need to apply the same legal standards to all of these areas,” Sotomayor said. Mr. Aguignaga maintained his administration's efforts to indirectly encourage action even when direct action is constitutionally prohibited, adding that both coercion and encouragement are used as indirect means.
But Barrett said, “Encouragement will go a long way.”
Aguignaga then said, “I think we should take it down because you just asked the question very, very politely and said it very, very politely. It shouldn't be a First Amendment issue. But the reality is, when the FBI or someone else lies, if a deputy to the president makes that statement, that statement is persuasive.”
Columbia University's Knight First Amendment Institute filed a central court brief that the justices referenced during oral arguments.
Alex Abdo, the institute's director, said he was encouraged to see the court weighing the First Amendment rights of users on social media platforms and the government's ability to participate in public debate.
“That's why courts resolve these cases by making clear that the First Amendment prohibits coercion but allows the government to use persuasion to try to shape public opinion. We hope to do so,” Abdo said.
