Supreme Court justices appear skeptical of censorship claim against Biden White House in Big Tech case

The Supreme Court seemed deeply wary Monday of finding the Biden 
administration improperly coordinated with Big Tech companies to censor 
social media posts deemed “misinformation” about topics including the 
COVID-19 pandemic and the 2020 presidential election.

The White House had challenged lower court rulings barring multiple White 
House officials from corresponding with companies like Google, Facebook 
and X about content moderation, decisions the Supreme Court had put on 
hold while it considers the matter.

The case derives from a lawsuit filed by the Republican state attorneys 
general of Missouri and Louisiana accusing the Biden administration of 
leaning on Big Tech to remove postings that didn’t jibe with the 
government narrative of the pandemic and other controversial topics.

Across the court’s ideological lines, the justices suggested that the 
lower courts had overstepped by restricting communications between 
government officials and the platforms.

At one point, liberal Justice Ketanji Brown Jackson asked Louisiana 
Solicitor General J. Benjamin Aguiñaga: “Suppose someone started posting 
about a new teen challenge that involves teens jumping out of windows at 
increasing elevations?”

“Is it your view,” the justice went on, “that the government authorities 
could not declare those circumstances a public emergency and encourage 
social media platforms to take down the information?”

Aguiñaga argued that the government can use its bully pulpit to push back 
against a budding public health epidemic and can even call up social media 
companies to convey those concerns to them, but drew a line at pressuring 
them.

“The moment that the government tries to use its ability … and its stature 
as the government to pressure them to take it down, that is when you’re 
interfering with third-party speech rights,” he argued.

Conservative Justice Amy Coney Barrett pressed Aguiñaga about whether the 
government could call up social media companies and pressure them to take 
down material that doxxed individuals, but stopped “short of actually 
being illegal.”

“Do you know how often the FBI makes those kinds of calls?” Barrett 
exclaimed after Aguiñaga suggested the government should not make such a 
notification.

Another liberal justice, Sonia Sotomayor, told Aguiñaga that “I have such 
a problem with your brief.”

“You omit information that changes the context of some of your claims,” 
the Bronx-born jurist scolded, later adding: “I don’t know what to make of 
all this.”

Aguiñaga apologized “if any aspect of our brief was not as forthcoming as 
it should have been.”

One of Aguiñaga’s few reprieves came from conservative Justice Samuel 
Alito, who suggested the questions from his colleagues “have gotten off 
into questions that I didn’t take it from your brief [that] you think we 
actually need to decide in this case.”

In his opening statement, the Pelican State’s top lawyer argued that 
“behind closed doors, the government badgers the platforms 24/7.

“It abuses them with profanity,” he added. “It ominously says that the 
White House is considering its options … all to get the platforms to 
censor more speech.”

“Under this onslaught,” Aguiñaga went on, “the platforms routinely cave.”

Some of the justices drew parallels between the tech companies’ experience 
with the government and their own relationship with the media.

“My experience is the United States, in all its manifestations, has 
regular communications with the media to talk about things they don’t like 
or don’t want to see or complaining about factual inaccuracies,” Justice 
Brett Kavanaugh said at one point, hearkening back to his days as White 
House staff secretary in the George W. Bush administration.

Liberal Justice Elena Kagan told Aguiñaga his argument was “extremely 
expansive.”

“Like Justice Kavanaugh, I’ve had some experience encouraging [the] press 
to suppress their own speech,” she added.

US Principal Deputy Solicitor General Brian Fletcher, representing the 
Biden administration, contended that the government was not instructing 
social media platforms to remove content, but merely giving advice while 
the firms were acting on their own volition.

“We’re not disputing that when the private platforms moderated the 
plaintiffs’ pages or their posts, that’s an injury in some sense,” 
Fletcher said. “We have disputed the traceability question and then the 
redressability question.”

Alito responded that lower courts had “found that the injury was traceable 
to the government’s actions.”

“We don’t usually reverse findings of fact that have been endorsed by two 
lower courts,” he added.

Fletcher also contended that the injunction was “extremely vague” and 
could hamper administration officials — though not President Biden — from 
discussing concerns such as “the circulation of antisemitic or 
Islamophobic content on social media platforms.”

Some conservative justices took issue with Fletcher’s characterization 
that the administration was merely encouraging platforms to adjust their 
policies.

Justice Neil Gorsuch alluded to Biden’s public remarks from the summer of 
2021 that Facebook was “killing people” by not being more aggressive at 
taking down posts skeptical of coronavirus vaccines.

“Could that be coercion, in some circumstances? That if you don’t change 
your operation policies, you’re responsible for killing people?” Gorsuch 
asked.

Fletcher noted that Biden had walked back that statement.

The justices are expected to rule on the case, Murthy v. Missouri, by the 
end of June.

https://nypost.com/2024/03/18/us-news/supreme-court-justices-appear-
skeptical-of-censorship-claim-against-biden-white-house/