Supreme Court to Hear Arguments on Free Speech and Social Media: Live Updates

The dispute was the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.

Justices Brett M. Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage are, they said, part of a valuable dialogue that is not prohibited by the First Amendment.

Members of the court also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five individuals — had suffered the kind of injury that gave them standing to sue. They also suggested that a broad injunction prohibiting contacts between many officials and the platforms was not a proper remedy in any event.

“I don’t see a single item in your briefs that would satisfy our normal tests,” Justice Kagan told J. Benjamin Aguiñaga, Louisiana’s solicitor general.

Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your brief,” she told Mr. Aguiñaga. “You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to.”

Mr. Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”

The justices peppered Mr. Aguiñaga with hypothetical questions about national security, doxxing of public officials and contests that could endanger teenagers, all suggesting that there is a role for vigorous efforts by the government to combat harmful speech.

Justice Samuel A. Alito Jr., the member of the court who appeared most sympathetic to the states’ position, urged his colleagues to remain focused on the case before them.

“Whatever coercion means,” he said, “whatever happened here is sufficient.”

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines and claims of election fraud. Last year, a federal appeals court severely limited such interactions.

The Supreme Court put that injunction on hold last year while it considered the administration’s appeal. If it were to go into effect, said Brian H. Fletcher, a lawyer for the government, it would prohibit all sorts of speech, including public comments from the press secretary or other senior officials seeking to discourage posts harmful to children or conveying antisemitic or Islamophobic messages.

He added that the social media companies had been moderating content on their platforms long before they were contacted by officials, had powerful business incentives to do so and were following their own policies. The companies acted independently of the government, he said, and often rejected requests to take down postings.

“These were sophisticated parties,” he said. “They routinely said no to the government. They weren’t open about it. They didn’t hesitate to do it. And when they said no to the government, the government never engaged in any sort of retaliation.”

Justice Alito said the volume and intensity of the contacts were troubling, as was the suggestion in some of them that the government and the platforms were partners in an effort to combat misinformation about the pandemic.

Mr. Fletcher responded that the messages had to be understood “in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic” at “a time when thousands of Americans were still dying every week.” The platforms, he added, acknowledged “a responsibility to give people accurate information.”

Mr. Aguiñaga presented a different picture of the relationship between the government and the platforms.

“Behind closed doors, the government badgers the platforms 24/7,” he said. “It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options.”

“Under this onslaught,” he added, “the platforms routinely cave.”

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

A second argument on Monday posed a related constitutional question about government power and free speech, though not in the context of social media sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association. The justices appeared to be favoring the gun rights group.

The states in Monday’s first case, Murthy v. Missouri, No. 23-411, did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down what they say is misinformation amounted to censorship that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about what they had flagged as misinformation.

The panel, in an unsigned opinion, said the officials had become excessively entangled with the platforms or used threats to spur them to act. The panel entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove content protected by the First Amendment.

The Biden administration filed an emergency application in September asking the Supreme Court to pause the injunction, saying that the government was entitled to express its views and to try to persuade others to take action.

The court granted the administration’s application, put the Fifth Circuit’s ruling on hold and agreed to hear the case.

Three justices dissented. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Alito wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

Those same three justices voiced the most skepticism of the Biden administration’s position at Monday’s argument.

Other justices asked about government interactions with the press. Justice Kavanaugh, who served in the White House in the administration of President George W. Bush, said that it was “probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, you know, if you run that it’s going to harm the war effort and put Americans at risk.”

That was perfectly proper, he suggested, adding that it would be a different matter if the request were backed by a threat of an antitrust action.

Justice Kavanaugh said he understood, based on his earlier government service, that there are “experienced government press people throughout the federal government who regularly call up the media and berate them.”

Justice Kagan echoed the point.

“Like Justice Kavanaugh,” she said, “I’ve had some experience encouraging the press to suppress their own speech.”

She sketched out some of those conversations: “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,” she said, “this happens literally thousands of times a day in the federal government.”

Chief Justice John G. Roberts Jr., another former White House lawyer, registered a lighthearted dissent, to laughter. “I have no experience coercing anybody,” he said.

But he added that the government is not monolithic and that different parts of it may hold and press competing views.

Justice Alito, who has been the subject of critical news coverage, seemed taken by the idea of pushing back against it, wondering aloud whether the court’s public information officer was in the courtroom.

“Maybe she should take a note about this,” he said. “So whenever they write something that we don’t like, she can call them up and curse them out and say ‘Why don’t we be partners? We’re on the same team.’”

There are other reasons to think the decision will not arrive until late June. The case was argued in the court’s next-to-last two-week sitting, and the court will be busy this month and next with arguments on abortion and former President Donald J. Trump’s claim that he is immune from prosecution on charges that he plotted to overturn the 2020 election.

The decision must also be harmonized with rulings in related cases, including ones on whether states may prohibit technology platforms from deleting posts based on the viewpoints they express and whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

Scholars have given varied explanations for why the biggest cases tend to land in June, no matter when they were argued. One is that justices keep polishing the opinions that will define their legacies until the last possible moment.

A 2015 study in The Duke Law Journal suggested a more personal reason: “The justices, most of whom have busy social schedules in Washington, may want to avoid tensions at their social functions by clustering the most controversial cases in the last week or two of the term — that is, just before they leave Washington for their summer recess.”

That question is at a general level the same as the one in the social media case, and its answer will also involve finding the constitutional line between persuasion and coercion.

The second case, National Rifle Association v. Vullo, No. 22-842, concerns the activities of Maria Vullo, a former superintendent of the New York State Department of Financial Services. In the aftermath of the school shooting in Parkland, Ms. Vullo said banks and insurance companies should consider whether they wanted to provide services to the group.

The N.R.A. sued, saying Ms. Vullo’s efforts leveraged government power in a way that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, ruled against the N.R.A. Judge Denny Chin, writing for the panel, acknowledged that government officials may not “use their regulatory powers to coerce individuals or entities into refraining from protected speech.

“At the same time, however,” he wrote, “government officials have a right — indeed, a duty — to address issues of public concern.”

Ms. Vullo’s actions were on the right side of the constitutional line, Judge Chin wrote. Key documents, he said, “were written in an evenhanded, nonthreatening tone and employed words intended to persuade rather than intimidate.”

In its petition seeking Supreme Court review, the N.R.A. said the appeals court’s ruling could have sweeping consequences.

“The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents — from gun-rights groups to abortion-rights groups to environmentalist groups and beyond,” the petition said.

One sign that the N.R.A. has a plausible First Amendment argument: It is represented by the American Civil Liberties Union. David Cole, the A.C.L.U.’s national legal director, will argue the case on behalf of the gun rights group.

“In this hyper-polarized environment, where few are willing to cross the aisle on anything,” Mr. Cole said, “the fact that the A.C.L.U. is defending the N.R.A. here only underscores the importance of the free-speech principle at stake.”

Heightening the problem of the flawed factual record undergirding the litigation, Justice Sotomayor starkly accuses Aguiñaga himself of distorting facts of what happened: “I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to — at least in one of the defendants, it was her brother that something happened to, not her. 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.”

Aguiñaga apologizes if any of the brief is not “as forthcoming” as it should have been.

Justice Kavanaugh, a former lawyer in George W. Bush’s White House, raises a national-security analogy. He notes that it’s “not uncommon” for government officials to protest to a newspaper an upcoming story on surveillance or detention policy and say, “If you run that, it is going to harm the war effort and put Americans at risk.” The implication is under the lower-court rulings, the government would not be allowed to express such concerns.

Justice Alito just demonstrated that he has bought into the misinformation in the lower court’s work, citing an example where a White House official said in an email to Facebook. “I want an answer on what happened here and I want it today.” In reality that (inappropriate) language was about getting a technical problem fixed with the presidential Instagram account, not about content moderation.

When Fletcher, the government lawyer, points out that the example Alito cited as happening repeatedly actually only happened once and had nothing to do with content moderation, Alito blows past the demonstration of his misunderstanding. “OK, well, put that aside. There’s all the rest.”

Fletcher raised an issue that some experts and research organizations involved in the case have: that many of communications cited in the lower courts included disputed facts, including quotations taken out of context.

The government’s actions at the heart of the case were intended largely as public health measures during the coronavirus pandemic. But a federal judge in Louisiana framed his ruling back in July through the filter of partisan culture wars — asking whether the government violated the First Amendment by unlawfully threatening the social media companies to censor speech that the Biden administration found distasteful and potentially harmful to the public.

In his ruling, Judge Terry A. Doughty described dozens of interactions between the administration and social media companies, including how two months after President Biden took office, his top digital adviser had emailed officials at Facebook urging them to do more to limit the spread of “vaccine hesitancy” on the social media platform.

Judge Doughty also outlined how officials at the Centers for Disease Control and Prevention had held “weekly sync” meetings with Facebook, once emailing the company 16 “misinformation” posts. And in the summer of 2021, he wrote, the surgeon general’s top aide had repeatedly urged Google, Facebook and Twitter to do more to combat disinformation.

The court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, hears appeals from federal trial courts in Louisiana, Mississippi and Texas. Those forums often attract ambitious lawsuits from conservative litigants correctly anticipating a favorable reception, and rulings from trial judges in those states are often affirmed by the Fifth Circuit.

But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees on the Fifth Circuit, did not seem to fare well before the justices when it was argued in October. Another, in which the Fifth Circuit struck down a federal law barring domestic abusers from carrying guns, was also met with skepticism.

Other rulings from the Fifth Circuit, on issues like immigration, abortion pills and so-called ghost guns, have also met with at least tentative disapproval from the Supreme Court, suggesting that the appeals court is out of step with the justices.

At a news briefing in September, Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said the Fifth Circuit had staked out positions that “at least some of the center bloc of conservatives aren’t going to be able to stomach.”

He added that some of the rulings by the Fifth Circuit were “delivered from Crazy Town” and that “it would be shocking if at least some of those decisions are not reversed.”

Last month, the Supreme Court considered two cases on whether Florida and Texas could limit prominent social media companies from moderating content on their platforms, appearing skeptical of the breadth of laws that had been enacted in an effort to shield conservative voices on technology sites.

On Friday, the court, in two unanimous rulings, set requirements for when elected officials could block people from their social media accounts.

The court’s decisions in the five cases will have broad political and economic implications. A ruling that tech platforms have no editorial discretion to decide which posts to allow, for instance, would expose users to a greater variety of viewpoints, but it would almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.