The U.S. Supreme Court heard oral arguments Monday concerning whether the Biden administration violated the Constitution when it ostensibly leaned on social media companies to censor and suppress Americans' protected free speech in the interest of advancing preferred narratives during the pandemic and in the years since.

The Fifth Circuit Court of Appeals agreed last year with a district court's assessment that there was ample evidence of a "coordinated campaign" of unprecedented "magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life."

Displeased with the courts' characterization of its censorship efforts as both problematic and unlawful, and altogether keen to keep it up, the Biden administration now seeks a favorable result from the high court.

Quick overview

Liberal justices were especially resistant Monday to the notion that the Biden administration had engaged in unlawful coercion.

Justice Elena Kagan expressed skepticism over there being demonstrable causation between the Biden administration's pressure campaign and the clamp-down on speech that ultimately occurred online during the pandemic.

Justice Ketanji Brown Jackson appeared to regard the administration's actions as a matter of persuasion contra coercion and shared hypothetical situations where censorship resulting from state pressure on private actors might supposedly be in the interest of the public good.

Justice Sonia Sotomayor suggested that Louisiana Solicitor General Benjamin Aguiñaga, arguing on behalf of the plaintiffs, distorted key facts in his brief.

Even nominally conservative judges did not altogether appear convinced by the arguments against the Biden administration.

On the whole, it does not appear the chances are great that the injunction granted by the Fifth Circuit and stayed by the Supreme Court will be reinstated.

Background

The states of Missouri and Louisiana were joined by other plaintiffs, including the coauthors of the Great Barrington Declaration, Drs. Jay Bhattacharya and Martin Kulldorff, in taking legal action against President Joe Biden, White House press secretary Karine Jean-Pierre, Anthony Fauci, and various Biden administration officials.

The case, Missouri v. Biden — now called Murthy v. Missouri before the high court — came about in response to the Democratic administration's well-documented efforts to shut down critics and questioners of its COVID-19 policies and preferred narratives during the pandemic.

U.S. District Judge Terry A. Doughty issued a preliminary injunction in July 2023, barring Biden administration officials from engaging social media companies regarding "the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms."

Blaze News previously reported that Doughty made clear in his ruling that the Biden administration "used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden's policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power."

"All were suppressed," wrote Doughty. "It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech."

The Biden DOJ filed an appeal but had its hopes dashed by the U.S. Court of Appeals for the Fifth Circuit in September, which largely upheld Doughty's ruling.

In October, the Fifth Circuit went a step further, expanding the injunction to include the Cybersecurity and Infrastructure Security Agency, noting that "for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment."

The U.S. Supreme Court stayed the Fifth Circuit's order later that month, allowing the Biden administration to resume its practice of having American citizens' speech online censored and suppressed.

The high court granted a review of the case by writ of certiorari.

The Biden administration maintains that public officials should be able to "inform, to persuade and to criticize" social media platforms.

House Judiciary Committee Chair Jim Jordan (R-Ohio) suggested in the amicus brief he and 44 other lawmakers filed with the Supreme Court supporting the plaintiffs that "this official coercion has undermined the marketplace of ideas on issues of public importance ranging from COVID to federal elections to Biden family misdeeds."

Persuasion version coercion

Brian Fletcher, the principal deputy solicitor general for the Biden administration, opened up oral arguments Monday by striking a distinction between governmental coercion and persuasion.

Fletcher suggested the Biden administration, when coordinating with social media companies to cure an approved narrative online and suppress dissenting opinions, was engaging in persuasion, not outright coercion — which he defined as "adverse government action."

Justice Samuel Alito, who appeared uncertain the Biden administration had been on the "persuasion side" of things, alluded to emails, meetings, and the general appearance of collusion between Biden administration officials and social media company personnel, saying, "I cannot imagine federal officials taking that approach to the print media, representatives over there. If you did that to them, what would the reaction be?"

Fletcher maintained that the back-and-forth and "language of partnership" between the Biden administration and social media platforms was not "unusual," insinuating the companies were big enough to resist the government's influence. He further likened the effort by the Biden administration's supposed persuasion efforts during the pandemic to the efforts by lawmakers in recent months to persuade colleges to deal with anti-Semitism on campus after the Oct. 7 Hamas terror attacks.

Alito suggested that in the case of social media companies, the government has "Section 230 in its pocket," referencing a section of the Title 47 of the United States Code that protects social media companies from lawsuits over the content that appears on its sites.

With "these big clubs available to it," Alito said the government has been "treating Facebook and these other platforms like its subordinates."

Justice Neil Gorsuch similarly noted that potential threats on the part of government officials to reform Section 230, might constitute coercion just as accusations — such as Biden's — that social media companies' failure to change their policies are "killing people" could be interpreted in the absence of desirable outcomes on the platform as threats of imminent adverse government action.

While Justice Brett Kavanaugh indicated it is "not uncommon" for government officials to caution traditional media to run with a story that may put Americans at risk, he added that persuasion becomes "problematic" if the state tacks on, "and if you publish the story we're going to pursue antitrust action against you."

The discussion shifted from whether the government was coercive to whether it had in fact engaged in coercion.

Justice Alito zeroed in on the case of one of the plaintiffs, Jill Hines, co-director of the conservative Health Freedom Louisiana group, whose criticism of mask wearing was suppressed on Facebook. Alito noted that two lower courts found that the injury in this case "was traceable to the government's actions."

Fletcher agreed it amounted to an injury but suggested both courts were wrong in observing traceability to the government.

Justice Elena Kagan later suggested that the case could be axed by saying the plaintiffs were not entitled to an injunction because they could not demonstrate an imminent threat of future harm. Kagan expressed a strong skepticism of causation, suggesting the censorship may have been solely a private decision — that Facebook and Twitter acted on their own volition, despite all of the Biden administration's urging.

Louisiana Solicitor General Benjamin Aguiñaga countered that it is clear from the communications between the Biden administration and social media platforms that there was "unrelenting government pressure."

After the White House "went nuclear" on social media platforms, Aguiñaga said the companies began reversing course on their own policies — "an example of platforms moving beyond what their own policies require."

"Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit," said Aguiñaga. "That's just being a bully."

Aguiñaga underscored that while the government is welcome to persuade companies, it "cannot induce, encourage or promote" private parties to do what the Constitution does not permit itself to do directly.

Justice Clarence Thomas asked whether the government working with private actors to remove content would violate the First Amendment in the manner that direct coercion does.

Aguiñaga responded, "Regardless of the means that the government tries to use to pressure the platforms to commit censorship against third parties, the Constitution really doesn't care about that. It's the fact that what the government is trying to accomplish is the suppression of speech."

Justice Ketanji Brown Jackson suggested there were various situations in which the government could weigh in and encourage or require censorship. She provided an example of a social media challenge that's getting kids killed — a situation that is a "health emergency."

Aguiñaga made the case that the government can lean on social media companies to amplify its own narrative but cannot lean on them to remove undesirable speech.

"Nothing prohibits the government from going to [a social media] platform and saying, 'We've seen a lot of false information about election activity, and COVID and vaccines and the like,'" said Aguiñaga. "Nothing prohibits the government from saying, 'Here's a list of everything we say is true, [or] that is true in our view. And you should amplify our speech, and anytime that false speech arises, you should put our post right there next to it saying this is the government's view on this issue.'"

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