MO Attorney General says government censored social media. Supreme Court seemed skeptical

Missouri Attorney General Andrew Bailey emerged from the U.S. Supreme Court on Monday, into a biting spring wind and declared that the federal government violated the first amendment by coercing social media to censor content on their websites.

“We believe that the justices will make the right decision here,” Bailey said, having to shout over drumming and saxophone music from a small protest supporting his argument. “Ultimately we will continue to build a wall of separation between tech and state using this lawsuit.”

Inside the courtroom, six of the nine justices appeared skeptical.

The case, brought by Missouri, Louisiana and five people who said their social media content was either banned or censored, alleges that the federal government violated the first amendment by coercing social media companies into taking down content related to COVID-19 health restrictions and the 2020 presidential election.

The court’s decision could have sweeping implications for how the federal government communicates with social media companies — from the FBI raising concerns about harmful posts to how the White House can interact with potentially harmful viral social media trends.

Since it was brought in May 2022, the case has unveiled hundreds of thousands of emails between the federal government and social media companies. But several of the justices appeared skeptical that their contents were different than how the federal government treats the print media — prompting a few dry jokes about whether they’d ever expressed their own harsh opinions about articles directly to reporters.

The court’s three liberal justices, along with Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, appeared focused on where to draw the line between the government coercing the social media companies and whether it was using the so-called “bully pulpit” to try and influence the actions of a private company.

Benjamin Aguiñaga, the solicitor general of Louisiana, called himself a “First Amendment purist” and appeared to take the position that most communication between the federal government and social media companies crossed the line, because it was asking the companies to remove the speech of third parties — people who wouldn’t be able to have a direct say.

His view is one that has become increasingly popular in Republican politics — one in which the content moderation policies of social media companies is used to suppress conservative voices. But his argument hit a wall with some justices who were concerned that it would mean the FBI can’t share information with social media companies about potential security threats.

After Justice Amy Coney Barrett asked a hypothetical question about the FBI warning social media sites about posts calling on people to do harm to a specific individual, she appeared surprised that Aguiñaga suggested that it shouldn’t be allowed.

“Do you know how often the FBI makes those kinds of calls?” Barrett asked.

Justices Samuel Alito, Clarence Thomas and Neil Gorsuch appeared more open to the state’s argument.

Alito questioned the fact that the government and social media companies talked about being on the “same team” and their many meetings and emails about content moderation, saying it appeared the government was “treating Facebook and these other actors like they’re subordinates.”

Principal Deputy Solicitor General Brian Fletcher said the context matters — saying they were working on a public health campaign to get people vaccinated during a pandemic.

The justices also homed in on the fact that President Joe Biden said the companies were “killing people,” prompting Fletcher to argue that Biden later walked the comments back.

After the arguments, Bailey appeared pleased that the justices had highlighted that line, as well as the idea that the federal government could take away Section 230, a law that prevents social media companies from being sued over content posted to their platforms by individual users.

“Those are direct explicit threats against the big tech,” Bailey said.

Even before the court gets to whether the government overstepped its authority, the justices will have to decide whether the states and five plaintiffs had the legal standing to bring the case at all.

Sotomayor, in particular, appeared to struggle at whether there was enough evidence that the government had done anything to take down the content of the people who brought the case. She criticized Missouri and Louisiana’s brief for the court, saying it omitted information that changed the context of their claims.

“I don’t know what to make of this,” Sotomayor said, prompting an apology from Aguiñaga.