The Supreme Court appeared highly skeptical on Monday about claims that the Biden administration overstepped its bounds and violated the First Amendment by pressuring social media platforms to remove problematic content. During oral arguments in two cases involving the practice known as "jawboning," where the government leans on private parties to take certain actions, justices across the ideological spectrum questioned whether the government's conduct was unlawful and if the plaintiffs could demonstrate direct harm.
In the social media case, Republican attorneys general in Louisiana and Missouri, along with five social media users, filed a lawsuit alleging that U.S. government officials went too far in pressuring platforms to moderate content. The plaintiffs include Covid lockdown opponents and Jim Hoft, owner of the right-wing website Gateway Pundit. The case primarily focuses on actions taken by the government after President Joe Biden took office in January 2021.
Several justices, including Elena Kagan and John Roberts, pointed out that fraught communications between government officials and the media are common and do not necessarily constitute coercion. Justice Amy Coney Barrett indicated that the plaintiffs' argument that mere encouragement by the government could be unlawful would "sweep in an awful lot" of routine activity.
Justice Brett Kavanaugh, who worked as staff secretary to President George W. Bush, rose to the government's defense, noting that White House press aides often call up members of the media and "berate" them if they don't like the press's coverage. He also questioned the plaintiffs' claims of coercion, asking, "What do you do with the fact that the platforms say no all the time to the government?"
Justice Samuel Alito appeared to be the most sympathetic to the plaintiffs, arguing that the evidence showed White House officials and others suggested they were on the "same team" as the social media companies, demanded answers, and "cursed them out" when they did not get the responses they wanted.
In the NRA case, the gun rights group claims that its free speech rights were violated by the actions of Maria Vullo, then-superintendent of the New York Department of Financial Services, who allegedly pressured insurance companies to end their business relationships with the NRA. The Biden administration, while defending its own conduct in the social media case, filed a brief mostly backing the NRA in this case, saying it had made a plausible free speech allegation.
The Supreme Court's decision in these cases could have significant implications for the government's ability to communicate with private entities and the scope of First Amendment protections. Based on the questions asked during the oral arguments, the court may find that Vullo inappropriately pressured insurance companies in the NRA case, while rejecting the plaintiffs' claims in the social media case.
