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SCOTUS skeptical of social media case

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Mar 18, 2024
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Illustration: Shoshana Gordon/Axios

Supreme Court justices appeared widely skeptical Monday that government officials overstepped in communicating with social media companies about COVID-19 and election misinformation content.

Why it matters: If the justices limit the ways the government can talk to social media platforms about content, it would upend the lines of communication between the public and private sectors about election security, public health and other issues.

The justices' comments during oral arguments Monday, however, suggested that SCOTUS may be unlikely to impose those limits.

The big picture: Efforts by Louisiana and Missouri to limit how much the federal government can encourage social media companies to take down certain content reached the court this week after a series of lower court decisions.

  • Murthy v. Missouri stems from the two states suing the Biden administration in 2022, arguing that it had violated the First Amendment while communicating with social media platforms about COVID-19 information and 2020 election misinformation.
  • Judges are focusing on whether White House and other federal officials violated the First Amendment by "coercing" companies on social media content moderation.

What they're saying: Benjamin Aguiñaga, the solicitor general of Louisiana, strained in his arguments as he described Biden administration officials "pressuring platforms in back rooms, shielded from public view."

  • Justice Sonia Sotomayor said he was distorting the record of facts: "I don't know what to make of all this because I am not sure how we get to prove direct injury in any way."
  • Other justices pointed out that the government has an interest in ensuring the public knows about certain harms, and it would be the government's job to talk to social media platforms about it.
  • Justices Elena Kagan and Brett Kavanaugh said officials trying to influence coverage was nothing new and standard practice in all administrations.
  • Arguing on behalf of the government, DOJ attorney Brian Fletcher said the government has valuable information for social media companies and that officials have tried to be persuasive, but not coercive.

In this case, Republican officials are complaining about the practice of "jawboning," which is when the government encourages platforms to carry or not carry speech they want.

  • But both parties have engaged in this widespread practice, with the Trump administration having similarly "jawboned" social media companies.

Friction point: First Amendment advocates watching the case said it's important that the court recognizes that the federal government should not coerce or threaten platforms, but that it has the right to try to shape public opinion on matters of public health and safety.

  • "We hope that the court resolves these cases by making clear that the First Amendment prohibits coercion but permits the government to attempt to shape public opinion through the use of persuasion," Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said in a release.

What's next: The court is expected to issue an opinion by the end of June.

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