The Supreme Court is examining whether government can fight online misinformation
Social Media Companies, the First Amendment, and the New York University Law School: The Case Against Ruemmler and the Biden Administration
Ruemmler, who was a White House counsel, said that the president can not remove legal protections for social media companies. Congress can only do that.
These companies are very large. He says that there always are competing political imperatives in public policy and that they don’t scare easy. “That’s life in the big leagues,” he said at NYU.
The Biden administration, for its part, rebuts the plaintiffs’ coercion allegations in unusually forceful terms. “When I looked at the government’s brief, they don’t use the L-word, the ‘lying’ word, but they do everything but,” observes former FBI counsel Weissmann.
Some justices were not convinced about the link the states wanted to draw between the government’s messages to tech platforms and later moderation decisions. In one instance the states presented, the Biden administration contacted Facebook in May 2021, asking it not to distribute posts about vaccine hesitancy, and in July 2021, Facebook allegedly blocked health groups in Louisiana that one of the plaintiffs was involved in.
The Supreme Court case involving social media companies is not a party and they continue to say that their speech and choices of what to allow are protected by the First Amendment. Those challenging that status contend that social media companies are more like utilities; they are hosts to other people’s opinions and thus don’t have the same First Amendment protections that newspapers and broadcasters have.
The Case for Free Speech against Political Parties: The Case of the Missouri Attorney General Andrew Bailey, the National Rifle Association, and the Department of Financial Services
There is no clear line between Republicans and Democrats in Monday’s case, observes NYU law professor Ryan Goodman. And you don’t have to be a genius to see that some politicians have a convenient way of switching sides, depending on the content of the speech at issue.
Missouri Attorney General Andrew Bailey brought a case against the Biden administration, accusing them of being the most massive attack on free speech in United States history. He was angry that Target was selling merchandise related to Pride while he was threatening legal action.
Presidents of both parties and members of Congress can and do say plenty of nasty things about social media companies in public; it’s the private communications that make critics suspicious, according to Jameel Jaffer, executive director of the Knight First Amendment Institute.
The courts have made the line between persuasion and coercion a point of reference. It sounds simple, but as Jaffer observes, “applying that rule is much more difficult than stating what the rule is.”
At issue was a sweeping Fifth Circuit Court of Appeals decision that barred White House officials, FBI officials, CDC and election experts, and officials from other agencies from having contacts with social media platforms. The appeals court decision is on hold pending a Supreme Court decision in the case later in the term, though the court’s three most conservative justices–Clarence Thomas, Samuel Alito, and Neil Gorsuch, would have allowed it to go into effect.
After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The National Rifle Association sued the former head of New York state’s Department of Financial Services.
The NRA charged that during an agency investigation into so-called “murder insurance,” the Department of Financial Services violated the NRA’s free speech rights by issuing letters and news releases that dissuaded financial institutions from doing business with the gun rights advocacy group. “Murder insurance” is a term that’s offensive to people and it’s illegal in New York. The 2nd U.S. Circuit Court of Appeals dismissed the NRA’s complaint, concluding that the news releases and letters were appropriate government speech, and the NRA then appealed to the Supreme Court.
“When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. And the result of that pressure was censoring certain viewpoints,” contends lawyer Younes.
Many quotes from government emails have been gathered by the lawsuit to prove the government’s coercive behavior.
Last September, the 5th U.S. Circuit Court of Appeals, the most conservative federal appeals court in the U.S., issued a broad ruling that barred key government officials from contacts with social media companies. The FBI, the Office of the Surgeon General, the White House and the Centers for Disease Control and Prevention were all affected by the order.
The case is about whether the Biden administration coerced companies to remove content that was not in line with their beliefs, thereby violating the First Amendment. It also asks the court to consider whether the government’s encouragement to take down such posts actually transformed the platforms themselves into state actors.
The Biden administration believes that the government is free to say what it wants under the First Amendment. Presidential power is reliant on the office using its bully pulpit to encourage Americans and companies to act in ways that advance the public interest.
In the past, Justice Thomas has complained that social media companies unconstitutionally censor speech and he pressed Fletcher about the government’s right to free speech. The court has repeatedly stated that the government is free to speak for itself. It’s not a right that comes from the First Amendment. It’s a feature of our constitutional democracy.”
The government says that officials from both Republican and Democratic administrations have had contact with social media companies. Indeed, from the beginning of the pandemic in the Trump administration, the companies themselves reached out to government health agencies for guidance on what was and was not reliable medical information.
Former Obama White House counsel Kathryn Ruemmler said she was particularly struck in reading the lower court opinions in this case because “there really was no recognition … that the vast majority of these communications between the government officials and the social media companies related to a global health crisis.”
“If you think about what is the purpose of the government, why do governments exist? It’s really to protect the health and safety and welfare of its citizens,” she said during a panel discussion at New York University’s School of Law.
The FBI isn’t gonna lie to the public when it’s supposed to shut down a social media company in the middle of a pandemic
The government has similar arguments about the FBI’s dealings with social media companies. Former FBI general counsel Andrew Weissmann notes that private companies and the government typically benefit from this sort of back-and-forth.
“Let’s say that somebody from the Department of Defense alerts you to information about a terrorist group that is identifying” the location and address of a State Department employee abroad and calling for violence against that individual. Typically, Weissman says, “depending on the imminent danger,” the FBI general counsel would alert the social media company and have a conversation that would go something like this: “I wanted to flag for you” something that “seems to us it violates your policy. Obviously that’s for you to decide, but you can understand why … There is a grave concern on our part.
The social media company often takes down a post because it doesn’t fit with the company’s policy but because they are grateful for the information, according to Weissmann. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.
Louisiana Solicitor General Benjamin Aguiñaga argued that when government officials contact social media companies, even encouraging a particular course of action amounts to unconstitutional pressuring. JusticeBarrett asked if that was just plain vanilla encouragement, her voice rising in disbelief. “Or does it have to be some kind of significant encouragement, because encouragement would sweep in an awful lot.
“I thought your principle argument was that … coercion doesn’t apply only when the government says, ‘Do this, and if you don’t do this, there’s going to be legal consequences,’” Alito said, “but that it’s a more flexible standard, and you have to take into account the whole course of the relationship.”
He admitted that it is not hard to make a public statement like that, though he thought it was hard to imagine. I’m not saying it did’t happen here, he said. “The president said this to the public in the middle of a pandemic, and then three days later — I think this is important — he clarified. He said he wasn’t saying that Facebook is killing people. I’m saying the people spreading misinformation are.'”
Several justices questioned the record in the case. Justice Kagan said she did not see “even one item” that supported barring government contacts. The justice told Aguiaga that she had a problem with her brief counselor. You do not include information that can change the context of your claims. You attribute things to people who it didn’t happen to… I don’t think we can prove direct injury in any way.
Aguiaga said, “The moment the government identifies an entire category of material that it wants to avoid being in the public sphere that is a First Amendment problem.”
It wasn’t necessarily to eliminate viewpoints but to eliminate a game that is harming children around the country, according to my colleague’s hypothetical.
In a hypothetical, Aguiaga and other members of the Louisiana state government were targets of people posting on social media that they should be harmed. She asked if the Federal Bureau of Investigation should encourage social media platforms to take down the messages if the speech did not cross the line of being illegal.
What about publishing classified information, asked Justice Kavanaugh. Are you suggesting the government can’t try to get that taken down? Did you discuss factual inaccuracies?
The Conversation between the Attorney General and the Press on Covert Recruitment and the Information Age: Aguiaga, Coney Barrett, and Justice Brett Kavanaugh
Aguiaga claimed that pressuring print and other media outlets was different from pressuring social media platforms.
She and Justice Amy Coney Barrett postulated that the FBI might contact social media companies to tell them that, while they may not realize it, they have been posting information from a terrorist group aimed at covert recruitment.
“I have had some experience encouraging the press to suppress their own speeches,” she said, laughing. “You just wrote a bad editorial — here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors — here are the 10 reasons why you shouldn’t do that again. I mean this happens literally thousands of times a day in the federal government.”
Some of the justices wondered if testy exchanges between the government and platforms were different from how it interacts with the press. “I’d assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them,” conservative Justice Brett Kavanaugh said in an exchange with US Principal Deputy Solicitor General Brian Fletcher, who was arguing on behalf of the federal government.
Two justices who once worked in the White House–including one who was appointed by Trump–explained the long history of government contacts with media companies.
conservative Justice Clarence Thomas and moderate Justice Samuel Alito asked the friendlier states questions. If the states could show the government coordinated with the platform, would it be possible for them to make their case? Aguiaga said that they could. Alito tried to steer discussion of the states’ arguments back to a more pointed question.
Conservative Justice Neil Gorsuch was upset with the remedy offered by the lower court which sought to block a large swath of communication. The government’s enterprise in this case was extremely broad and the breadth of the injunction reflects that.
Kavanaugh said it did seem strange to him that the government and platforms would seek to partner on issues like covid. As long as there are unusual circumstances and platforms that choose to advance good information and reach out to the government, it is an open door.
After Aguiñaga began responding that he’s a “purist on the First Amendment,” Coney Barrett interrupted and said, “Do you know how often the FBI makes those kinds of calls?”
Chief Justice John Roberts pressed Jackson on whether he believed platforms should be encouraged to take something down. Jackson did not eliminate a viewpoint, but an instruction for a dangerous game.
Jackson’s biggest concern is that your view has the First Amendment being used in a way that undermines the government in important time periods. I heard you say that the government can post its own speech but in my opinion, it is not safe for kids and it is not going to get done.
I think they can say that it’s a problem and that it’s happening on your platforms. Aguiñaga said. The government trying to use its power as the government and its stature as the government to force them to take it down is when you are interfering with the third-party speech rights.
But several justices seemed skeptical of the arguments from Louisiana Solicitor General Benjamin Aguiñaga, who argued on behalf of the states and individual plaintiffs who challenged the Biden administration on its communications with social media companies. The justices were concerned about the consequences of limiting the ways the government could speak with tech platforms.
In a statement released in May 2022, when the case was first filed, Missouri attorney general Eric Schmitt alleged that members of the Biden administration “colluded with social media companies like Meta, Twitter, and YouTube to remove truthful information related to the lab-leak theory, the efficacy of masks, election integrity, and more.” (The lab-leak theory has largely been debunked, and most evidence points to Covid-19 originating from animals.)
While the government shouldn’t necessarily be putting its thumb on the scale of free speech, there are areas where government agencies have access to important information that can—and should—help platforms make moderation decisions, says David Greene, civil liberties director at the Electronic Frontier Foundation, a nonprofit digital rights organization. The foundation filed an amicus brief on the case. He says the CDC should be able to inform platforms when it thinks there is hazardous public health information on them. How do we inform without coercing them?
Robert F. Kennedy, Jr. was the previous chair of Children’s Health Defense. The group was banned from Meta’s platforms in 2022 for spreading health misinformation, like that the tetanus vaccine causes infertility (it does not), in violation of the company’s policies. A spokesperson for CHD referred WIRED to a press release, with a statement from the organization’s president, Mary Holland, saying “As CHD’s chairman on leave, Robert F. Kennedy Jr. points out, our Founding Fathers put the right to free expression in the First Amendment because all the other rights depend on it. In his words, ‘A government that has the power to silence its critics has license for any kind of atrocity.’”
