David Inserra
The Supreme Court heard oral arguments on the Murthy v. Missouri case, which looks at the issue of when government communications with social media companies become illegal attempts to informally censor the expressive rights of social media platforms and their users. The overall takeaway of the oral arguments is that some justices seemed concerned about the government’s conduct in this case while others were concerned with the impacts on regular government communication with private actors. The court also discussed questions of legal standing that would sidestep the core constitutional questions.
What follows is a summary of the oral arguments with limited commentary for those interested in how the oral arguments went. It is focused on the core constitutional and policy discussions rather than issues of standing and legal process.
US Solicitor General
Justice Thomas asked the opening question about whether the coercion standard in Bantam Books v. Sullivan was the only way for the court to look at this case. The US solicitor general asserted that the Bantam standard is the correct standard.
Justice Sotomayor then asked about the impacts of the injunction that had been in place prior to the Supreme Court. How did and would it affect the government if allowed? The solicitor general agreed that while the government can’t coerce, the analysis and injunction by the 5th Circuit would hinder the sharing of national security information. The bully pulpit is not coercion and they happened years ago so no longer an immediate threat of harm.
Justice Alito asked a series of questions about the nature of the communications revealed by discovery, subpoena, and related disclosures. Justice Alito pointed to the government referring to its relationship with social media platforms as a partnership, the demands and expectations government actors made, regular meetings and follow‐ups on government demands, and the cursing and aggressive language.
Justice Alito asserted that the government couldn’t get away with this for print media and that it could here because it could hold Section 230 liability protections over social media companies’ heads. The solicitor general responded that COVID-19 was a special situation and that context should be considered when looking at the “unusual” email discussions and tone.
Justice Kavanaugh followed up and asked if such anger and incivility was regular practice among government officials. The government agreed that this may not be ideal but it’s not the first time intemperate language had been used by government officials. Justice Alito joked that perhaps whenever the media write something the justices don’t like, the Supreme Court press team should call up the media outlet to curse them out and try to partner with them in writing future media reports.
The solicitor general acknowledged this isn’t necessarily a good thing but also asserted that the First Amendment isn’t a civility code and only protects specific tangible harms from coercion.
Justice Kavanaugh followed up and noted that it struck him as unusual that government actors would call themselves partners to social media companies. The solicitor general said it might look unusual, but it was an open door with the social media companies who publicly stated they wanted government feedback and conversations.
Commentary: It’s true that social media companies in plenty of situations may certainly want to hear from governments that have relevant information. But the US solicitor general’s characterization here is not entirely accurate. In his opening statement, the Louisiana solicitor general cites internal emails by Meta’s policy chief, former UK deputy prime minister Nick Clegg, in which Clegg looks to change a content policy, not because Meta wanted to, but because it could not afford to be punished by the government. So it was not truly an open door.
Justice Jackson started what would become a consistent line of inquiry about why coercion isn’t always problematic. She pointed to the unique nature of the once‐in‐a‐lifetime COVID-19 pandemic as a context that may be relevant when determining if such government action meets the relevant level of scrutiny. The solicitor general agreed that in some situations the government can suppress speech that meets strict scrutiny standards, but that in this case there was no coercion.
Justice Gorsuch asked if coercion can include not only threats but also inducements. The government viewed inducements as the other side of the coin from threats—both can coerce private actors into doing the government’s bidding. Justice Gorsuch followed up to see if the solicitor general agreed that a threat or inducement regarding anti‐trust or Section 230 action is indeed coercion. The solicitor agreed that anti‐trust action would be coercion, but said statements about 230 may not always be coercive because as executive branch officials they can’t enact Section 230 reforms.
Justice Gorsuch pushed back by noting that they clearly have the power to influence policymaking. Gorsuch continued by asking if a government official accused social media platforms of killing people, if that should be considered coercion. While asked as a hypothetical, the solicitor general defended President Biden who made such a statement. The solicitor conceded that in certain circumstances it could be coercive but not in this context.
Justice Thomas then asked a few questions about whether the government is allowed to pursue the suppression of protected speech. He also asked if it makes any difference if the platforms make their own decisions or if the government collaborates with platforms. The solicitor general argued that as long as it is merely persuasive and not coercive, then yes, the government can advocate for the suppression of protected speech.
Justice Gorsuch inquired about market concentration and if it should be considered in whether or not it makes it easier to coerce private actors. The solicitor general was not sure.
Justice Kavanaugh asked if the significant encouragement standard used by the lower courts is different than the coercion standard. The solicitor general said the way the significant encouragement test was used by the states and lower courts is far broader than the coercion standard. Justice Kavanagh asked about the various situations where the government may communicate. The solicitor general pointed to awful but lawful content, national security issues, law enforcement issues, and election integrity, as well as providing advice on current issues when asked by social media companies.
Justice Barret then asked if, hypothetically, Facebook decided to cede its content moderation over to the government as a sign of being a partner, is that okay? The solicitor general conceded that this veers into state action.
Commentary: At the start of the pandemic, Meta (then Facebook) created a policy that turned government lockdown orders into the rules for Facebook. So for a short period, Facebook did effectively cede a portion of its content policy to government edicts, though it did so of its own free will as far as I’m aware.
Jackson asked if Bantam and Blum v. Yaretsky (the significant encouragement test) need to be read as very different. The solicitor general agreed that the significant encouragement test should be treated as an implicit/explicit inducement test like coercion.
Louisiana Solicitor General for the States and Individuals
Alito started by asking about the significant encouragement and coercion tests. The Louisiana solicitor general responded that both are complementary tests for determining when the government set out to suppress speech.
Sotomayor objected that Louisiana is mixing up legal standards but the solicitor general responded that they all fall under Norwood v. Harrison, which states that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Justice Jackson argued that certainly the government can censor speech in some cases. The solicitor general agreed that some national security cases, for example, may meet strict scrutiny. Justice Jackson concluded that not every case affecting speech is a First Amendment violation. Louisiana’s solicitor conceded that it is not always the case but the topline rule should be if the government has set out to abridge speech. Justice Jackson countered that this isn’t the First Amendment test, to which the solicitor general responded that this is the plain text of the First Amendment. Justice Jackson seemed to suggest that the government may be justified in suppressing certain COVID‐related online speech.
Justice Kagan noted that encouragement is a very common thing. The state solicitor general agreed but noted that the target of government complaints or encouragement usually knows of the complaint. In this case, the government encouraged social media platforms to remove the speech of third parties who are never informed of such suppression.
Amid some cross‐talk, Chief Justice Roberts joked that he has no experience coercing anybody. But he argued that the government isn’t a monolith, so that might dilute the power of government encouragement. He offered an example of the EPA and the Army Corps of Engineers trying to coerce a private party in opposite directions. The solicitor general responded that in this case the government was largely looking to suppress certain viewpoints of his clients.
Commentary: Isn’t that just bad all around? Doubling the coercion doesn’t make the actions of either government agency acceptable, does it?
Justice Kagan asked if law enforcement should be allowed to request that platforms take down protected terrorist speech. Louisiana cautioned that giving the government the right to try to suppress protected speech by potential bad actors inevitably ends with the government labeling various types of American speech as needing to be suppressed.
Justice Kagan argued that there is just too much normal discussion and encouragement by the government and private actors that would become illegal if the court sided with the states and individuals. The solicitor general answered that the government can respond to false or harmful speech by using its positive counter‐speech.
Justice Barrett then asked about what the legal standard should be for newspaper op‐eds versus social media platforms. The Louisiana solicitor general responded that the topline is the Norwood standard: that the government can’t do indirectly what it is prohibited from doing directly. Therefore, any government action—coercion, inducement, encouragement—that fits under that topline rule should not be allowed.
Barrett further asked if just plain encouragement should be disallowed as it covers a lot of content. Louisiana’s solicitor responded that the court shouldn’t allow the government to encourage platforms to remove protected speech in any way, but even a higher significant encouragement standard works as that happened in this case.
Justice Jackson returned to her argument that it is permissible for the government to persuade or even coerce platforms to take down speech in various situations. She provided a hypothetical of what happens if classified documents are leaked. Could the government try to take down that content? The state solicitor general responded that strict scrutiny may support the government here. But, they pointed out, the court has never in its history said that the government can use its power to argue for eliminating viewpoints and their protected speech.
Justice Jackson doubled down with a hypothetical of a dangerous viral challenge that results in teens jumping out of buildings and getting harmed. Could the government declare this an emergency and demand social media platforms take down that content? The solicitor general affirmed the ability of the government to condemn such activities as harmful, but not to demand that social media companies remove the content. The government can use its speech to highlight a problem but not to encourage the removal of protected speech.
Chief Justice Roberts asked further about Justice Jackson’s viral challenge hypothetical. The solicitor general responded that, while as a policy matter it may be good for the government to stop harmful speech, giving the government the power to target categories of speech to be suppressed is a problem.
Concluding commentary: There is something appealing and pure about Louisiana’s desire for a world where the government is not allowed to target protected speech for suppression but uses its bully pulpit as a mechanism for counter‐speech . As some of the hypotheticals point out, in practice there may be situations where the court very much wants the government to be able to recommend removing harmful speech in non‐coercive ways. As other Cato experts have written, the seemingly inescapable challenge for the court is finding a standard that allows potentially valuable and non‐coercive government speech while preventing abuse.