The oral arguments in Murthy v. Missouri, focusing on government censorship of social media, are poised to begin. This case marks a significant free speech case in the Court’s history. Brian Fletcher, representing the Biden Administration, starts by challenging the standing to sue, arguing against coercion in government actions.
Steve Bannon, host of the War Room, made the perfect comments about what we are seeing unfold in DC. “The Tech Companies Were “Willing Conspirators” With The Biden Admin. To Censor The American Populist”:
Back at court, however, Justice Alito highlights the traceability of harm, emphasizing the need to rule on the merits. Fletcher faces further scrutiny from Justices Gorsuch and Alito on the standards of coercion, particularly concerning the pandemic context.
Justice Jackson’s questions raise concerns about the limits of coercion, especially during exceptional circumstances like a pandemic, prompting chilling implications for free speech advocates. Justice Kagan suggests dismissing the case for lack of future harm, while Gorsuch questions whether coercion is more significant in concentrated industries like social media.
Solicitor General Benjamin Aguinaga faces intense questioning from the liberal justices, notably Sotomayor, Kagan, and Jackson, regarding past precedents and the government’s authority to limit speech. Chief Justice Roberts seeks clarity on the definition of coercion, particularly in dynamic situations. Barrett raises concerns about the government’s role in combating harmful content without violating the First Amendment.
Alito refocuses the discussion on the core issue of coercion despite tangential points raised by colleagues. The arguments conclude that Louisiana counsel faces rigorous scrutiny, particularly from the liberal justices, though Roberts and Kagan also pose challenging questions. Jackson’s deferential view towards government coercion remains notable throughout the proceedings.
Jonathan Turley reported on his Twitter about the details:
Here is a thread of his tweets:
The oral arguments in Murthy v. Missouri are about to begin on the censorship of social media by the government. It could prove one of the most important free speech cases in the history of the Court…
…Brian Fletcher is first up for the Biden Administration to seek defend the role of the government in working to censor social media. He is starting by trying to bar review by attacking standing to sue…
…Sotomayor had a great question to the government on why an injunction to prevent it from coercing companies or speakers is a material injury to the government…
…Fletcher insists that these are merely “bully pulpit exhortations” by President Biden and others rather than coercion. It is, in the Administration’s view, persuasive not coercive…
…Justice Alito noted that, if any of the parties have standing, they must rule on the merits. He noted one of the parties had a Facebook account suspended at the time of the filing. Fletcher admits it is an injury, but said it was not traceable to the government…
…Alito then delivered a haymaker and said two lower courts found it was traceable and the Biden Administration failed to properly challenge that point. Alito has a good point that the Court ordinarily will follow the record on such findings…
…Fletcher is really struggling here on the standard and Justice Gorsuch further nailed him down further redressability and traceability…
…Another Alito haymaker: “Wow I cannot imagine federal officials taking that approach to the print media. If you did that to them, what do you think the reaction would be…Would you do that the New York Times . . . ”
…Alito pointed over to the print media and asked what would happen if they tried to take this approach to print media. Fletcher did not answer the question and fell back to how back the pandemic was…
…Alito did not buy it and noted that the print media was also part of the pandemic effort. Fletcher admitted that “I had the same reaction that these messages were unusual.” He also added that they show “anger” by the government…
…Justice Jackson just nudged Fletcher back from his concession that, if there was coercion, there might be a first amendment violation. Jackson suggested that some coercion might be allowed in “a once in a lifetime pandemic.” That question is chilling for free speech advocates
…Justice Kagan just voiced a possible avenue to dismiss on simply finding no future harm was shown…
…Justice Gorsuch just raised whether the coercion is greater with a concentrated industry like social media. It makes coordination easier and Gorsuch was asking if that is a relevant concern…
…Solicitor General Benjamin Aguinaga is up for the Louisiana…
…Justice Sotomayor has hit Aguinaga with “mixed legal doctrines” in using past precedent. That was followed by Justice Jackson who again stressed that the government may on occasion prohibit certain speech…
…Jackson continues to voice the most deferential view to the government in limiting speech and hit counsel with exaggerating the past standards…
…Now Kagan is joining in on the pile on and treating such interactions as commonplace and not coercive…
…Roberts just got a laugh by noting at the outset “I have no experience coercing anyone” but then pushed Aguinaga on diluting the notion of coercion. Roberts is looking for line drawing in future interactions with the government in “fluid situations.”
…Kagan is back on Aguinaga and asking about the government pointing out that a site may be posting terrorist speech. Aguinaga responded it would be criminal and not protected speech…
…Aguinaga just did a good job in pushing back on Sotomayor demanding specific page citations showing how the targeting of the disinformation dozen impacted his client…
…Sotomayor just said “I have such a problem with your brief” and accuses the state of omitting key facts and misrepresenting others…
…Barrett is pushing on how “encouragement” can be limited to make a standard workable in terms of violating the First Amendment. She is putting Aguinaga on a slippery slope by raising the FBI combatting doxxing and other expressions…
…Jackson is back to argue that the government may coerce statement under certain circumstances…
…Notably, Aguinaga has been hammered without much assistance from the right of the court. It has been a virtual tag-team effort by Sotomayor-Kagan-Jackson…
…Roberts just joined in pushing the state on limiting the government’s ability to encourage the removal of certain harmful content…
…Alito is up and saying that the questions of his colleagues were tangential points and is seeking to reframe the issue on the core danger of coercion…
…The argument is over. Counsel for Louisiana faced withering questioning from the three most liberal justices but also some tough questions from others, particularly Roberts and Kagan. Jackson expressed the most deferential view of the government’s ability to coerce speech.Â
The Washinton Post reported on Monday afternoon that SCOTUS appears likely to reject the Republican-led effort to limit the federal government’s ability to pressure social media companies to remove harmful content and misinformation.
Justices expressed concerns about restricting White House officials from communicating with tech giants on issues like public health and national security.
The case involves allegations that the Biden administration violated the First Amendment by influencing platforms to modify or remove posts.
The Court’s decision could shape how government officials interact with social media platforms. The dispute is part of broader claims that social media companies silence conservative voices online. During oral arguments, justices suggested that the plaintiffs lacked sufficient legal grounds, and some questioned whether the government’s actions amounted to censorship.
The Biden administration argued that officials can share information and participate in public debate, especially regarding public health and elections.
The case stems from a lawsuit filed by two Republican-led states and individual social media users. Despite a lower court ruling against the administration, the Supreme Court intervened in October, allowing communications to resume while the litigation continues.