Supreme Court frowns at limiting Biden administration’s contact with tech companies

WASHINGTON (CN) — A red state fight against the Biden administration’s attempt to stymie online misinformation floundered at the Supreme Court on Monday. 

Missouri, Louisiana and several individuals claim the Biden administration pressured social media companies to censor their posts. 

The majority of the justices appeared unconvinced that the Biden administration should be barred from communicating with social media companies about content the government believes is harmful. 

“My biggest concern is that your view has the First Amendment hamstringing the government in substantial ways in the most important time periods,” said Justice Ketanji Brown Jackson, a Biden appointee

The states asked the justices to uphold two lower court rulings that would strictly limit the government’s communication with social media companies. 

Jackson said she was worried that cutting off such contact would deprive platforms of helpful information that could be used to prevent harm to users.

Justice Elena Kagan, an Obama appointee, said the administration would be barred even from answering the platforms’ questions under the state’s arguments. 

The Biden administration says its relationship with social media companies pushed the president’s agenda on fighting vaccine and election misinformation. 

“To the extent that the administration had influence on the platforms here … its influence of the classic bully pulpit sort,” said Brian Fletcher, the principal deputy solicitor general at the Justice Department, during Monday's proceedings. 

U.S. Chief District Judge Terry Doughty ordered the White House and 67 federal entities to stop contacting social media companies. Doughty’s order was narrowed by the Fifth Circuit, but the appeals court upheld some limits on government communications with platforms. The Supreme Court put that ruling on pause to hear arguments in the case. 

During nearly two hours of oral arguments, Louisiana’s solicitor general struggled to connect the platforms’ actions to threats or coercion from the Biden administration. 

Justice Sotomayor was among several justices who were critical of the state’s claims, suggesting the states had omitted context and information to twist the facts of the case in their favor.

The states said that the platform’s suspension of several accounts harmed the people who wanted to consume those users’ content. Sotomayor said it would be unusual for the court to accept this standing theory. 

“I don’t think we’ve ever dispensed standing based on the injury to another,” Sotomayor said. 

Kagan said Louisiana failed to articulate how the government had censored certain viewpoints. 

The states’ arguments on the merits of their case did not fare much better than their arguments on standing. The justices seemed interested in setting a test to determine if the government crossed the line into acting unconstitutionally. 

“I just want to know my yardstick I’m supposed to measure these allegations against,” said Justice Neil Gorsuch, a Trump appointee.

The states argue that any effort to convince social media companies to remove content violated the First Amendment. 

Justice Amy Coney Barrett, a Trump appointee, said that theory was broad and swept in many routine actions by the administration. She seemed to think some communications were permissible, like “plain vanilla encouragement.” 

Louisiana tried to create discrepancies between the FBI warning platforms of terrorist activity on their sites and the White House’s fight against vaccine misinformation. But Barrett said the court had to rule for many cases, not just this one. 

“What we say in this case matters in other cases too,” Barrett said. 

The court seemed to see parallels between the government encouraging social media companies to remove misinformation and how administrations interact with the press. Justice Brett Kavanaugh, a Trump appointee, used his prior White House experience to recall times the administration called reporters to complain about stories. 

Kagan said these conversations between the press and government happen thousands of times a day. 

“I, like Justice Kavanaugh, have some experience encouraging some [reporters] to suppress their own speech,” Kagan said. 

Justice Samuel Alito, a George W. Bush appointee, seemed more amenable to the states’ arguments. He took issue with the tone of the emails sent to social media companies and said he read White House emails that demanded answers from platforms — and cursed them out when the administration didn’t get its way. 

Alito seemed to think these actions would not be permissible with media organizations. 

“I don’t know if our public information officer is here today but maybe she should take a note about this so whenever they write something that we don’t like we can call them up and curse them out,” Alito said. 

Republican U.S. Representative Jim Jordan, who was in the courtroom on Monday, criticized Jackson after the argument. Jordan said her comments about the First Amendment hamstringing the government were frightening, claiming "big government was telling big tech to take down speech."

"That you could have a justice on the United States Supreme Court say that in the oral argument, it made no sense to me," Jordan said in an interview with Fox News. "That is frightening because she really believes that. That is scary. Where we're headed understand what took place here. This was censorship by surrogate."

The Supreme Court will issue a ruling by the end of June. 

Follow @KelseyReichmann

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