The Supreme Court examines whether the government can do more to fight online misinformation
Social Media and the Biden Law: Why Facebook should not be used for political purposes, and how to use it in the U.S. Supreme Court
That’s “kind of silly,” says former White House counsel Ruemmler, who notes that the president can’t remove existing legal protections for social media companies. Congress can’t do that.
“These are big companies. They don’t scare easy,” he says, adding that there always are competing political imperatives in public policy. He said that it was life in the big leagues.
The Biden administration made a vigorous rebut of the lawsuit’s allegations. “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.
The government believes that the lower court made a mistake when it drew up a claim from the White House email to Facebook. “Are you guys f***ing serious?” the email says, adding, “I want an answer on what happened here and I want it today.” Sounds bad, the government says, until you learn that the “admittedly crude email” concerned “a technical problem affecting the President’s own Instagram account—it had nothing to do with moderating other users’ content.”
In a major case testing the role of the First Amendment in the internet age, the U.S. Supreme Court on Monday hears arguments focused on the federal government’s ability to combat what it sees as false, misleading or dangerous information online.
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NYU law professor Ryan Goodman points out that there is no clear partisan line in the case. 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, for instance, brought this case accusing the Biden administration of “arguably … the most massive attack against free speech in United States history.” But at the same time, he threatened legal action against Target for selling LGBTQ-themed T-shirts and other merchandise as part of a Pride campaign.
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, the courts had drawn a line between persuasion and coercion. It sounds simple, but as Jaffer observes, “applying that rule is much more difficult than stating what the rule is.”
The Supreme Court justices’ position on social media questions is not well known this term. The case is in the high court and the three most conservative justices wouldn’t have paused the lower court’s decision. They would have let it take effect.
The social media case is one of the two cases that will proceed after the court finishes arguments on Monday. The Department of Financial Services in New York state was sued by the National Rifle Association.
The Department of Financial Services sent letters to financial institutions that prevented them from doing business with the gun rights group because of the investigation into murder insurance. “Murder insurance” is a derogatory term for insurance that pays if a person shoots another person and is illegal in New York. The 2nd US Circuit Court of Appeals found the news releases and letters to be appropriate government speech and then appealed the decision 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. Lawyer Younes claims that the pressure resulted in thecensoring of certain viewpoints.
But the plaintiffs in the case have produced dozens and dozens of quotes from government emails that they say 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. Among the personnel targeted in the order were officials at the White House, the Centers for Disease Control and Prevention, the Office of the Surgeon General, the FBI and an important cybersecurity agency.
The plaintiffs in the lawsuit are two states, Missouri and Louisiana, and five individuals, including vaccine opponents, who either were banned from some internet platforms at the height of the COVID-19 pandemic or whose posts, they say, were not prominently featured on social media sites such as Facebook, YouTube and X, formerly known as Twitter.
The Biden Administration: The Use of Social Media Companies as a Back-and-forth to Inform Government Officials and Policy Makers
The government is permitted to express its views and to try to convince others, according to the Biden administration. In its brief, the government says that a central aspect of presidential power is the use of the office’s bully pulpit to seek to persuade Americans to act in ways that would advance the public interest.
Jenin Younes claims that the government is using social media companies as a way to make it hard for people to speak out. And that, she contends, is unconstitutional state action.
The government notes that officials in both Republican and Democratic administrations have interacted regularly with social media companies. For example, at the beginning of the Trump administration, the companies themselves reached out to the government for guidance on what was and wasn’t reliable medical information.
Ruemmler said that she saw no recognition in the lower court opinions of the majority of the communication between the government officials and the social media companies.
“If you think about what is the purpose of the government, why do governments exist? She spoke during a panel at the New York University’s School of Law.
The FBI and other agencies’ dealings with social media companies are similar to those made by the government. Andrew Weissmann, a former FBI general counsel, says that private companies and the government tend to benefit from this sort of back-and-forth.
Someone from the Department of Defense may give you information about a terrorist group that may want to kill a State Department employee overseas. Weissman says that the general counsel of the FBI will usually alert the social media company and tell them something that seems to them to be in violation of their policy. Obviously that’s for you to decide, but you can understand why … 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.
The Washington Post is Not a Public Interest. The Louisiana State Department of Public Integrity and the FBI’s “Process is Going rampant on your Social Media”
He said that the principle of his argument was that there would be legal consequences for not complying, but that it was a more flexible standard.
The states were asked questions from Alito and Clarence Thomas. 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 said they could. Alito wanted to steer discussion back to the point of discussion about coercive behavior.
Conservative Justice Neil Gorsuch also expressed frustration with what he called an “epidemic” of “universal injunction[s],” questioning the remedy offered by the lower court, which 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.”
Some of the justices wondered if even testy exchanges between the government and platforms were all that dissimilar from how it might engage 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.
It seemed strange to him that the government and platforms were interested in working on issues such as covid. When there is a shortage of good information and platforms reach out to the government in a situation like the swine flu, it is an open door.
Coney Barrett interrupted Aguiaga and said, “Do you know how frequently the FBI makes those kinds of calls?”
Conservative Justice Amy Coney Barrett asked Aguiñaga a different hypothetical, where he and other members of the Louisiana state government were doxxed and people were posting on social media that “people should rally, and you should be harmed.” She asked, assuming the speech did not cross the line of becoming illegal, whether it would be appropriate for the Federal Bureau of Investigation to encourage social media platforms to take down the messages.
“I think they absolutely can say, ‘This is a problem, it’s going rampant on your platforms,’” Aguiñaga said. “But the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you’re interfering with the third-party speech rights.”
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 said that Jackson’s example was an instruction for a dangerous game rather than about eliminating a viewpoint.
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’ve heard you say a couple times that the government can post its own speech, but in my hypothetical, ‘Kids, this is not safe, don’t do it,’ is not going to get it done.”
Aguiñaga said the government could use the bully pulpit to publicly encourage the platforms to do that. But he took issue with private communications instructing platforms on what they should do.
Several justices seemed skeptical of the arguments made by the Louisiana Solicitor General who argued for the states and people 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.
Talking about President Joe Biden’s dealings with social media companies, Jameel Jaffer, the Executive Director of the Knight First Amendment Institute, said, “There are a number of things he has said that I think make some people suspicious.” The Supreme Court on Tuesday heard arguments on whether officials can be compelled to hand over their communications with social media companies.