The Supreme Court is not convinced that the White House should be allowed to talk about their policies on social media
The First Amendment and Social Media Freedoms: The Case of Facebook in the Upper Derivative of Ruemmler and the Biden Administration
Ruemmler said that the president couldn’t remove legal protections for social media companies. Congress can’t do that.
These are large companies. He says that there always are competing political imperatives in public policy. “That’s life in the big leagues,” he said at NYU.
The Biden administration rebuts the lawsuit’s allegations with force. The government doesn’t use the “L-word” but does everything else, according to a former FBI counsel.
The justices didn’t seem sure about the link 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.
None of the social media companies are parties in Monday’s Supreme Court case, but they continue to assert that like other media companies, their speech and their choices of what to allow on their platforms are protected by the First Amendment. Those challenging that status argue that social media companies don’t have the same rights as newspapers and broadcasters because they host other people’s opinions, and so don’t have the same First Amendment protections.
The National Rifle Association sued the Department of Financial Services over “murder insurance” and “Free speech” against the Biden administration and the First Amendment
“There is no clear partisan line” in Monday’s case, observes NYU law professor Ryan Goodman. You don’t have to be a genius to know that some politicians can switch sides based on the speech at issue.
Andrew Bailey is the Attorney General of Missouri, and he brought the case that accused the Biden administration of being the most significant attack against free speech in US history. The legal action was threatened against Target because of the sale of Pride-themed shirts and other items.
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.
Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. “Applying that rule is much more difficult than stating what the rule is, but it sounds simple”, observes Jaffer.
The Supreme Court justices don’t know where they stand on this or other social media questions. But in this case, the court’s three most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would not have paused the lower court’s decision while the case is litigated in the high court. They would have allowed it to take 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 used to describe insurance that pays for using firearms to shoot another person and it is illegal in New York. The 2nd US Circuit Court of Appeals decided that the news releases and letters were appropriate government speech, which led to the appeal 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.
Dozens of quotes from government emails have beenproduced by thePlaintiff in the case that proves the government’s coercive behavior
Both liberals and conservatives on the Supreme Court appeared reluctant to make broad limits on the government’s communication with social media companies about what should be removed from their websites.
The case seeks to determine whether the Biden administration coerced the companies to take down some content, such as misinformation about covid vaccines, which is against 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 government is free to express its views and to try to persuade others under established First Amendment precedent, according to the Biden administration. In its brief, the government says that the central aspect of presidential power is the use of the office’s “bully pulpit” to persuade Americans and companies to act in ways that advance the public interest.
Jenin Younes, who represents the individuals who claim they were censored, argues that the government is essentially using social media companies as proxies to censor speech. She believes that that is unconstitutional state action.
The government notes that both Republican and Democratic administrations communicate with social media companies. The companies reached out to government health agencies for guidance on what was and wasn’t reliable medical information during the H1N1 swine flu outbreak.
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.
Why the Social Media Companies should not be Responsible for Their Communication – Or Why the U.S. Government should not cooperate with a Wall Street Journal, or Why the FBI and the Government shouldn’t Publish Another Editorial
The government makes similar arguments about the FBI and other agencies’ 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.
The location and address of a State Department employee overseas, as well as information about a terrorist group that wants to kill them, should be relayed to you by the Department of Defense. “depending on the imminent danger, the FBI general counsel will alert the social media company and have a conversation that seems to us it violates your policy,” says Weissman. You can understand why, but it’s for you to decide. there is a grave concern on our part.”
The response, most of the time, says Weissmann, is that the social media company is grateful for the information and often takes down the post because it does violate company policy but was missed by the company’s algorithms. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.
Alito believed that the principle argument was that if you don’t do this, you will be held accountable, but it’s a more flexible standard.
Alito and Clarence Thomas were friendly to the states. Thomas asked if the states could make their case even without proving the coercion if they could show the government coordinated with the platforms. Aguiaga was certain that they could. Alito at one point tried to steer discussion of the states’ arguments back to a more pointed question about coercion.
Conservative Justice Neil Gorsuch expressed frustration with what he called anemic of universal injunctions, questioning the remedy offered by the lower court that sought to block a large swath of communication. Aguiñaga responded that the breadth of the injunction reflects that “the breadth of the government’s enterprise in this case was extremely broad.”
“Like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech,” Kagan said, to laughter. There are 5 reasons you shouldn’t write another editorial. Here are 10 reasons you shouldn’t write a story filled with factual errors again. Thousands of times a day, this happens in the federal government.
He said that it seemed odd that the government would seek to partner on issues like covid. Fletcher said that’s a function of the unusual circumstances in a scenario like the pandemic, where platforms chose to advance good information and reach out to the government, so in that case, “it’s 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?”
Aguiaga was asked if a ruling in the states favor could have a negative effect. She thought of a challenge on the social media website that made teens jump out of windows. “Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” Jackson asked how he was.
“The moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem,” Aguiñaga said.
Chief Justice John Roberts, a conservative, followed up on Jackson’s hypothetical, asking whether encouraging platforms to take something down rises to the level of coercion. He added that Jackson’s example was not about eliminating a viewpoint but rather an instruction for a dangerous game.
Later, Jackson said, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods … I have heard you say that the government can post it’s own speech, but that wouldn’t get it done because kids would not trust it.
The government could use the bully pulpit to publicly encourage platforms to do that, according to Aguiaga. But he took issue with private communications instructing platforms on what they should do.
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 appeared to worry about the far-reaching consequences of limiting the ways the government is able to speak with tech platforms.
