The Supreme Court heard oral arguments Monday in a case that could upend the federal government’s relationship with social media companies and online lies. The plaintiffs in Murthy v. Missouri argue that the White House’s requests to remove coronavirus misinformation on Twitter and Facebook constitute unlawful censorship in violation of the First Amendment.
The proceedings began with Brian Fletcher, principal deputy solicitor general for the Department of Justice, asserting that none of the government’s communications crossed the line between persuasion and coercion. He also objected to descriptions of events contained in lower court rulings, saying they were misleading or included quotes taken out of context.
“When the government persuades a private party not to broadcast or promote someone else’s speech, that is not censorship, it is persuading a private party to do something they are legally allowed to do “Fletcher said.
The justices, including conservatives Samuel Alito and Clarence Thomas, questioned Fletcher on exactly where the line lies between threatening businesses and persuading them. Fletcher defended the government’s actions as part of its wider capacity to try to reduce public harm.
“The government can encourage parents to monitor their children’s cell phone use or internet companies to be wary of child pornography on their platforms, even though the Fourth Amendment would prevent the government from doing so directly,” Fletcher said.
Opening arguments from Benjamin Aguiñaga, Louisiana’s solicitor general, argued that the government was secretly coercing platforms to censor speech, in violation of the First Amendment. The suit, the culmination of years of a Republican-backed legal campaign, was filed by the state attorneys general of Louisiana and Missouri. Jim Hoft, founder of the conservative conspiracy theory site The Gateway Pundit, and other right-wingers also joined the plaintiffs.
“The government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms behind the scenes, out of the public eye, is not using the pulpit at all. ‘bully,’ Aguiñaga said in an opening statement. “That’s just being a bully.”
Several justices, including liberals Elena Kagan and Sonia Sotomayor, also asked Aguiñaga what kind of government outreach about potential harms would violate the First Amendment and which would be justified. Kagan suggested that the government has historically interacted with both platforms and with the press on content that could be harmful, such as threats to national security. Sotomayor, meanwhile, sharply criticized factual inaccuracies in the plaintiff’s case.
“I have so much trouble with your memory, Advisor. You omit information that changes the context of some of your claims. You’re attributing things to people that didn’t happen to them — at least in one of the defendants, it was her brother that something didn’t happen to her,” Sotomayor said. “I don’t know what to think about all this.”
Aguiñaga apologized, saying he was sorry if the brief had not been as open as it should have been.
