The SCOTUS justices might have a gripe or two about the media.
The Supreme Court on Monday heard oral arguments on Murthy v. Missouri, a case on which they will decide whether the administration violated the First Amendment rights of social companies when it asked them to make specific content choices, which the plaintiff’s lawyers argue amounted to coercion.
During oral arguments, justices asked questions about what constitutes coercion and in what cases the government can intervene with suggestions for the conduct of social media companies — and also showed off some of their media knowledge.
The states of Missouri and Louisiana argued in a complaint filed in 2022 that government entities like the White House, the Centers for Disease Control and Prevention, and the Department of Homeland Security engaged in censorship when they asked social media companies to remove or flag misinformation on COVID-19 vaccines and conspiracy theories about widespread election fraud.
Murthy v. Missouri is one of several cases the high court will hear about social media and the First Amendment this year. Two of them, Moody v. NetChoice and NetChoice, LLC v. Paxton, are related to whether the government can restrict content moderation decisions made by social platforms.
‘I mean, this happens literally thousands of times a day in the federal government’
Justice Samuel Alito painted platforms like Facebook as “subordinates” to the government. He also said there was “constant pestering” of social media companies by government officials that seemed unfair compared to other media, adding that he “cannot imagine federal officials taking that approach to the print media.”
Justice Brett Kavanaugh, who worked as a lawyer during the George W. Bush administration, disagreed, saying that in his experience, it was not unusual for there to be “government press people throughout the federal government who regularly call up the media and berate them.”
And Justice Elena Kagan, who served as an advisor in the Clinton administration, said she had a similar experience to Kavanaugh.
“So, like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech,” Kagan said. “‘You just wrote an editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.’ I mean, this happens literally thousands of times a day in the federal government.”
“I have no experience coercing anybody,” Chief Justice John Roberts later quipped, to laughter. However, Roberts agreed with the pair and pointed out that government agencies do not have a “monolithic” point of view on moderation of social media content.
Justice Ketanji Brown Jackson also showed off her knowledge of the media sphere with a hypothetical about dangerous internet challenges.
Jackson, who was arguing about the potential for the government to step in during public health emergencies, presented a made-up challenge of “teens jumping out of windows at increasing elevations” when questioning the lawyer representing the state of Louisiana.
Jackson asked if the government could step in at that point. Louisiana Solicitor General J. Benjamin Aguiñaga argued that it could violate free speech.
Even as Roberts tried to back Jackson, Aguiñaga doubled down, saying, “the moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem.”
The case is predicted to favor the Biden administration’s position that their actions were not coercion, per multiple media outlets like the Washington Post. Still, a decision is not expected until June or July.
An injunction previously handed down by the Fifth Circuit of Appeals on the same case barred a wide-ranging group of government officials from contacting social media companies. However, it is unlikely that the Supreme Court will uphold it, Vox reported.
Representatives for the Supreme Court, the Department of Justice, and the Louisiana Attorney General’s office did not immediately respond to a request for comment from Business Insider.
