By Lawrence Hurley—
NBC News
The majority of Supreme Court justices on Monday were very skeptical of the Republican lawsuit that claims that Democrat Joe Biden's government crossed the line from persuasion to repression by asking social media companies to remove content it considered problematic. .
The Court is considering an injunction imposed by a federal judge, currently on hold, that would limit communications between federal officials and social media companies on a wide range of issues.
In oral arguments on Monday, conservative and progressive justices questioned whether such conduct by public officials is illegal and whether the plaintiffs could show they had been directly harmed.
One of the issues raised was the lack of evidence about whether government officials threatened punitive measures if companies did not cooperate.
David Paul Morris/Bloomberg via Getty Images file
This case was one of two that the Supreme Court analyzed this Monday about the practice known in English as
jawboning
, in which the Government relies on private entities to do what it wants, sometimes with the implicit threat of adverse consequences if they do not. demands are met.
The plaintiffs claim that in both cases the First Amendment of the Constitution, which protects, among other rights, freedom of expression, has been violated.
The second case concerns allegations that a New York state official improperly pressured companies to end their ties to the National Rifle Association (NRA), the leading gun rights group.
In the case of social media, the Republican attorneys general of Louisiana and Missouri, along with five social media users, filed the lawsuit alleging that government officials went too far in pressuring the platforms to moderate published content.
The plaintiffs include opponents of quarantines during the worst of the COVID-19 pandemic;
and Jim Hoft, owner of the conservative website Gateway Pundit.
The lawsuit makes several claims related to activities that occurred in 2020 and before, including efforts to minimize the spread of false information about COVID-19 and the presidential election.
Donald Trump was president at the time, but the district court ruling focused on actions taken by the government after Biden took office in January 2021.
Several Supreme Court justices questioned whether the nature of the interactions was problematic;
progressive Elena Kagan noted that officers sometimes have tense communications with journalists.
“This happens literally thousands of times a day in the federal government,” she said.
Conservative Supreme Court Chief Justice John Roberts similarly noted that the federal government “is not monolithic,” meaning that a complaint from one department is not necessarily a signal that another agency would take action if a publication did not. was eliminated.
“That has to significantly dilute the concept of coercion, right?” he questioned.
Fellow conservative Amy Coney Barrett indicated that the argument put forward by Louisiana Attorney General Benjamin Aguiñaga that a simple stimulus by the government could constitute illegal conduct would apply to a large number of routine activities.
Progressive Ketanji Brown Jackson asked Aguiñaga whether, under her interpretation of the law, it could potentially be illegal for the government to ask social media platforms to remove a viral post encouraging teenagers to jump out of windows.
[They approve a bill that seeks to prohibit the use of social networks by minors under 16 years of age]
“In your opinion, couldn't the authorities declare these circumstances a public emergency and ask the networks to remove the information that is causing this problem?” he said.
Aguiñaga responded that, in his opinion, the government's conduct could cross the line if it goes beyond expressing concern about the content and then asking for the posts to be removed.
Conservative Justice Brett Kavanaugh was also skeptical of the plaintiffs' arguments that there was coercion.
“What do you do with the fact that the platforms say no to the Government all the time?” He asked.
The judge who was most sympathetic to the plaintiffs was the conservative Samuel Alito.
Evidence shows, he said, that White House officials and others suggested they were on the “same team” as the social media companies, demanded answers and “insulted” them when they didn't get the ones they wanted.
“There is constant harassment of Facebook and other platforms,” he added.
Alito also addressed the journalists in the room: “I can't imagine federal officials taking that approach with media representatives present.
If they did that to you, what do you think the reaction would be?,” he asked.
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In July 2023, federal judge Terry Doughty, based in Louisiana, prohibited officers from having “any type of communication with network companies that encourages, pressures or induces in any way the removal or reduction of content containing freedom of protected expression.”
The 5th Circuit Court of Appeals, based in New Orleans, narrowed the scope of the order, which still continued to require the White House, the FBI and top health officials not to “significantly coerce or encourage” the network companies to eliminate content that the Biden Government considers disinformation.
The Supreme Court blocked the order in October by accepting the case.
In the NRA case, the gun rights group claims its free speech rights were violated by the actions of Maria Vullo, then superintendent of the New York Department of Financial Services.
Based on questions asked during oral arguments, the court could conclude that Vullo improperly pressured insurance companies to end their business relationships with the NRA.
Vullo was investigating insurance companies that the NRA had worked with to provide coverage to its members.
The NRA alleged that Vullo, in meetings with insurance companies, made “threats to stop them from providing services to the NRA.”
Following the 2018 school shooting in Parkland, Florida, which left 17 dead, Vullo urged insurance companies and banks to reconsider any relationships they had with groups affiliated with gun rights.
[In Florida they want to prohibit children from having social media accounts]
Alito indicated that the only difference between the two cases is that Vullo was not subtle enough in his interactions with the companies.
“Does that mean that New York officials really could have gotten what they wanted if they hadn't done it in such a clumsy way?” he asked.
Another key difference between the two cases is that the Biden Administration, while defending its own conduct in the social media cases, filed a brief largely supporting the NRA in the other case, stating that it had made a plausible allegation of freedom of expression.
Justice Department lawyer Ephraim McDowell told the judges that in the NRA case there was a “specific coercive threat” that was not present in the social media case.
The NRA has appealed a 2022 ruling by the New York-based 2nd Circuit Court of Appeals that found Vullo's actions did not constitute illegal conduct.
Vullo argued in his defense that part of his job was to warn companies about the “risk to their reputation” after doing business with the NRA.
The case attracted more attention after the American Civil Liberties Union (ACLU), which often supports liberal causes, signed on to represent the NRA.
The ACLU indicated that, although it does not agree with the NRA's positions, it will defend the organization's right to expression.