The U.S. Supreme Court heard arguments Monday about the role of the First Amendment in the Internet age.
Katie Dull/NPR
hide caption
toggle caption
Katie Dull/NPR
The U.S. Supreme Court heard arguments Monday about the role of the First Amendment in the Internet age.
Katie Dull/NPR
At the Supreme Court on Monday, a majority of the justices seemed highly skeptical of the argument that federal employees could be broadly prohibited from contacting social media platforms.
At issue was a sweeping ruling by the 5th Circuit Court of Appeals that barred White House staff, FBI officials, CDC and election experts, and other agency officials from having contact with social media platforms. The appeals court's decision is on hold pending a Supreme Court decision later this term, but three of the court's most conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, agreed to the decision. would have allowed it to take effect.
Five individuals and two Republican-majority states (Louisiana and Missouri) have systematically pressured social media companies to remove information the government deems false and misleading. They claim the government is violating the First Amendment. The Biden administration counters that the White House and government officials have every right to persuade social media companies to cover misinformation about the coronavirus, foreign election interference and even election information about who will vote. are doing.
Contact between government and media companies
Two judges who once worked in the White House, Trump appointee Brett Kavanaugh and Obama appointee Elena Kagan, have been the most outspoken about the government's long history of contact with media companies. did.
Kavanaugh said that “across the federal government…we had experienced government media personnel who regularly called on the media and denounced them,” but it was unclear whether he was the target of the censure or the perpetrator.
Justice Kagan confirmed the filing of the complaint.
“Like Judge Kavanaugh, I have a history of encouraging news organizations to suppress their own speech,” she said. “You wrote an article full of factual errors. Here are 10 reasons why you should never do it again. I mean, things like this happen literally thousands of times a day in the federal government. I am doing it.”
She and Judge Amy Coney Barrett said the FBI might contact social media companies to tell them they may be posting information about terrorist groups for covert recruitment purposes, even though they may not be aware of it. I assumed that it could not be done.
Louisiana Attorney General Benjamin Aguignaga argued that even encouraging certain actions when government officials contact social media companies amounts to unconstitutional coercion. In response, Judge Barrett said: “Just some vanilla encouragement,” Judge Barrett asked in a soft, disbelieving voice. “Or does it have to be some kind of serious encouragement, because encouragement is so widespread?
However, Aguignaga did not draw a clear line of distinction other than to argue that pressure on print and other media is different from pressure on social media platforms.
When can the government act?
What about the release of classified information, Judge Kavanaugh asked. Are you saying the government can't try to remove it? Or what about factual inaccuracies?
Judge Ketanji Brown Jackson asked questions about public safety issues. What happens when young people are injured or killed by a new online fad of jumping out of windows? Could the government legitimately ask the platform to remove this?
When Mr. Aguignaga cheated, Chief Justice John Roberts followed.
“According to my colleague's hypothesis, it wasn't necessarily to eliminate a point of view,” he said, but the purpose of the communication was “to eliminate a game that is causing significant harm to children around the world.” They say there is, and we recommend that it be stopped.”
Aguignaga agreed: “Policy-wise, it might be great for governments to be able to do that, but the moment they identify whole categories of content that they don't want in the modern public sphere, it becomes a problem.” First Amendment issues. ”
Several judges questioned the record in the case. Justice Kagan said she could not find “a single item” to support a ban on contact with the government. Justice Sonia Sotomayor even more directly told Aguignaga: “Your concise counselor is very problematic. You omit information that changes the context of some of your arguments. blaming people for things that didn't happen…I don't see how you can prove direct injury.”
Conservatives are skeptical of the government's position
On behalf of the Biden administration, Deputy Solicitor General Brian Fletcher countered attacks primarily from Justices Alito, Gorsuch, and Thomas. But he maintained that when governments try to persuade social media platforms to remove posts, it is an attempt at persuasion, not coercion.
Unlike some of his conservative colleagues, Justice Alito was skeptical of all aspects of the government's case.
“There is constant harassment on Facebook and some other platforms,” he said. Government officials want to “meet regularly” and suggest rules that should be applied…and I thought, “Wow, federal officials would take that approach to print media. Can you imagine that?'' I thought.
Justice Gorsuch referred to statements made by President Biden at the height of the pandemic and asked whether “accusations by government officials that they are responsible for killing people if they do not change their policies” could be considered coercion.
Mr Fletcher responded that he found it “hard to imagine” that such public statements could be forced, but admitted it was not impossible. “All I'm saying is that that didn't happen here,” he said. “The president said this to the nation in the middle of a pandemic, and then three days later — and I think this is important — he clarified, 'I'm saying Facebook is killing people. I'm talking about the people.' It's about spreading misinformation.''
And when he was asked plainly, [whether he] It will be held [the platforms] Asked to take responsibility, the president replied, “I want you all to look in the mirror and imagine what would happen if this misinformation reached your loved ones.'' I think it's clear that this was an invitation, not a threat. ”
Justice Thomas, who has long complained that social media companies unconstitutionally censor speech, pressed Fletcher on what speech rights the government has under the Constitution. Fletcher responded that the court has repeatedly stated that “the government has the right to express its opinion. That is not a First Amendment right. It is a hallmark of our constitutional democracy.”
