The Supreme Court seemed likely Monday to reject a bid by GOP-led states to restrict the federal government from urging social-media companies to remove allegedly misleading posts or disinformation on their platforms, unless there is a threat of official retribution.
The Republican attorneys general of Missouri and Louisiana, along with several individuals who complained that online platforms such as
Facebook suppressed their views against vaccines and lockdowns during the Covid-19 pandemic at the government’s demand, filed the First Amendment suit in 2022. Lower courts have largely sided with the plaintiffs, finding that Biden administration officials’ content requests amounted to government coercion, but the high court during oral arguments on Monday voiced more sympathy with the administration’s defense.
The social-media companies themselves aren’t involved in the case, and liberal justices questioned whether any plaintiffs suffered harms that gave them a right to sue. And justices across the spectrum expressed skepticism that the government’s interactions with the platforms, even if heated, amounted to official restraint.
For one, said Chief Justice John Roberts, “the government is not monolithic.” Different individuals, agencies and branches of government can have different views, he said, and the media has contacts with a variety of official sources. “That has to dilute the concept of coercion,” he said.
Justice Brett Kavanaugh offered a national-security analogy to the government’s campaign against disinformation—something that conservative critics contend has targeted their opinions.
“It’s probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, ‘If you run that, it’s going to harm the war effort and put Americans at risk,’ ” said Kavanaugh, who served in the George W. Bush White House when surveillance and detention policies were front-page news.
Deputy Solicitor General Brian Fletcher, representing the Biden administration, quickly agreed. “That’s an example of a valuable sort of interchange as long as it stays on the persuasion side of the line,” he said. Threatening a tech company with retribution for failure to comply, like an antitrust investigation, would be a different story, he said.