The Supreme Court looked unlikely to uphold a sweeping Fifth Circuit injunction on Monday, as Murthy v. Missouri tested the boundaries of federal ability to encourage content moderation on private social media platforms. The case springs from Covid-era attempts on the part of the Biden Administration to combat anti-vaccine content, and other speech deemed dangerous or conspiratorial, by “partnering” with Twitter, Facebook, and other online platforms. The White House, CDC, Surgeon General, and FBI, among others, monitored the platforms’ policies, told them that some posts constituted misinformation, and berated platforms for failing to take appropriate action. Respondents—the states of Louisiana and Missouri, and several private parties—claim that this pressure led to the removal of posts, including one by the Louisiana Department of Justice, and restrictions against users. The government says it was only exercising its own right to speak, using the “bully pulpit” in pursuit of policy preferences and public safety goals. The Fifth Circuit’s injunction, earlier stayed by the Supreme Court, had broadly prohibited this kind of federal “jawboning,” as it is often called.

The standing debate centered around Jill Hines, one of the named private plaintiffs. Benjamin Aguiñaga, Louisiana’s Solicitor General, argued that federal pressure led to moderation actions against several of her posts. Hines was also part of Facebook “health groups” that were shut down about two months after a White House email complained about them. Deputy Solicitor General Brian Fletcher, arguing for the federal government, said there was no way to prove that Facebook hadn’t acted on its own initiative, and so no way to prove the government caused the harm.

Justice Alito described causation as a factual finding accepted by two lower courts, and so one that must be upheld if not clearly erroneous: “We don’t usually reverse findings of fact that have been endorsed by two lower courts.”

Fletcher replied that the government wasn’t disputing any findings of historical fact, only the theory of causation accepted below. The lower courts, he argued, had applied an improperly broad “birds-eye” causation standard, inferring causation from the volume of emails and moderation actions, but failing to show any specific causal path.

Justices Kagan and Sotomayor appeared to accept that argument, repeatedly pressing Aguiñaga on the causation issue: “I guess I just didn’t understand in what you were saying how you drew the link to the government. . . . [H]ow do you decide that it’s government action as opposed to platform action?” Kagan wondered.

Most of the argument, though, centered on the merits. Respondents offered two theories of First Amendment harms. First, they said, the federal government had coerced the platforms, in violation of the test from Bantam Books v. Sullivan, a 1963 case about obscenity and government pressure of publishers. Second, they said, the government and the platforms had worked together so closely that the platforms were really just state actors when moderating content. Justice Thomas seemed especially interested in a non-coercion theory, starting off the question by asking Fletcher, “Is the coercion/encouragement framework of Bantam Books the only way to look at this case?”

But there’s no good way to describe this as state action, Fletcher argued, because the platforms themselves expressed a desire to partner with the government—understandable in the context of a global pandemic. So they hadn’t been co-opted as government instruments. It wouldn’t even matter, Fletcher said, if the government had convinced the platforms to change their minds. “I'm saying that when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do.”

Justice Barrett asked whether there might be a point at which voluntary cooperation becomes state action. Maybe, she suggested—even if it didn’t happen in this case—a platform could become a state actor by deciding to turn over its content moderation to the government, in, say, a situation of national emergency. But on the whole the Justices did not seem to think that either coercion or state action occurred here.

The Justices also worried that a finding of coercion here might sweep too broadly. Some Justices with prior government experience pointed out that bully-pulpit persuasion is commonplace. “So, like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech. You just wrote a bad editorial. Here are the five reasons you shouldn't write another one. . . . I mean, this happens literally thousands of times a day in the federal government,” Justice Kagan said.

The government is perfectly free to apply pressure to unprotected speech, like messages from foreign actors or incitement to violence, but nothing else, Aguiñaga responded—and even foreign speech becomes protected once embedded in domestic commentary, like retweets or quotes. The government might be able to encourage a newspaper not to publish an article that threatens national security, but it could do so only because that pressure might survive strict scrutiny. At best, the government could tell a platform that it thinks some posts are false or dangerous: “Nothing prohibits the government from saying here's a list of everything we say is true, that is true in our view, and you should amplify our speech, and anytime that false speech arises, you should put our posts right there next to it saying this is the government's view on this issue,” Aguiñaga said.

Justice Jackson offered a hypothetical: suppose “someone started posting about a new teen challenge that involved teens jumping out of windows at increasing elevations.” It becomes a fad, and kids start dying. Can the government “declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?”

In that case, Aguiñaga said, the government can offer educational information and warnings to the public. It can even “call and say this is a problem, it's going rampant on your platforms, 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's speech rights.” The “bully pulpit” can be used to influence behavior—but it can’t be used to target third-party speech. Those restrictions might keep the government from taking ordinary public safety measures, Jackson worried.

The Justices sounded far more amenable to another free-speech coercion claim in NRA v. Vullo, argued immediately afterward. That case involved a press statement and guidance documents issued by New York’s Department of Financial Services and its director, Maria Vullo, in the wake of the Parkland shooting. Vullo and the Department called on banks and insurance companies to cut ties with the NRA. “Are you asking the Court to break any new ground in this case?” Justice Barrett asked David Cole, counsel for the ACLU on behalf of the NRA. “This is about as square corners a Bantam Books case as you can imagine,” Cole answered. Some of the Justices thought it might be better described as a retaliation case, but either way the Court appeared broadly receptive to the NRA’s claim, and open to a remand for reconsideration of the Second Circuit’s ruling that Vullo enjoys qualified immunity. The difference between Murthy and Vullo seemed to rest on facts, not law: Vullo’s actions were more coercive and threatening than the White House’s communications with social media companies. So the Court looked happy to apply existing First Amendment doctrine to an ordinary coercion case, but unwilling to expand it in a way that might transform interactions between government and media.

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