Supreme Court hears arguments on First Amendment cases

The Supreme Court on Monday appeared deeply skeptical of arguments by two conservative states that the First Amendment bars the government from pressuring social media platforms to remove online misinformation.

In more than 90 minutes of oral arguments that occasionally veered into the justices’ personal frustrations with the press, several conservative justices sided with the liberal wing in appearing to doubt claims by two states that the Biden administration violated the Constitution with the practice.

Here are key takeaways from Monday’s arguments:

Roberts, Kavanaugh, Barrett point to potential for fallout: In a series of hypothetical questions, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett signaled concern about setting a standard that restricted the government’s ability to communicate with the platforms over content that might be problematic. Such a standard, they seemed to suggest, could be damaging. Kavanaugh noted it is “not uncommon for government officials to protest an upcoming [newspaper] story on surveillance or detention policy and say, you know, ‘If you run that, it’s going to harm the war effort and put Americans at risk.’” He asked whether the government couldn’t request the platforms to remove content that was, for instance, posed danger to American troops.

Alito accuses Biden admin of “pestering Facebook”: Not all of the conservatives appeared ready to back the Biden administration. Led by Justice Samuel Alito, several raised concerns about the extent of the contact between the government agencies and the private platforms over posts they wanted stricken. In one key exchange, Alito laid out a case for how unusual it was that federal officials were pressuring the sites to remove content. Alito, among the most stalwart conservatives on the court, wondered aloud what would happen if the government had made similar requests of traditional media companies, like newspapers and cable television outlets.

Alito brings up Section 230: Alito argued that the difference between traditional and social media is that the federal government ostensibly holds the power to revoke protections under Section 230 of the Communications Decency Act that immunize the sites from lawsuits involving content moderation. In other words, Alito said, the government had “big clubs” it could use to try to coerce the social media companies to cooperate. Fletcher pointed to the context of the communication between the Biden administration and the social media companies. “This was a time when thousands of Americans were still dying every week and there was a hope that getting everyone vaccinated could stop the pandemic,” he said.

Read more key takeaways here.

The Supreme Court on Monday wrestled with an appeal from the National Rifle Association challenging the way a New York financial regulator pressured banking and insurance companies to cut ties with the gun rights group.

Justices on both ends of the bench pressed the attorney representing the former regulator, Maria Vullo, on why the state’s Department of Financial Services appeared to target services that were legal as well as those there were not.

“What she was seeking was a ban even on potentially lawful programs,” Justice Sonia Sotomayor asked at one point.

Justice Samuel Alito asked the American Civil Liberties Union, which is representing the NRA in the case, what type of action from a public official would be permitted and what types of action would cross the line.

“How do you define when it goes too far?” Alito said, referring to a range of actions from a government regulator who is attempting to get certain private companies to stop working with another private entity.

A decision is expected this summer.

The New York banking and insurance regulator involved in the National Rifle Association case faced tough questions from both ends of the Supreme Court bench, with both conservatives and liberals who seemed to be questioning why the case shouldn’t be allowed to go forward.

“You say in your brief this case is ‘not even close,’” said Justice Samuel Alito near the end of the argument. “You stand by that?”

Neal Katyal, the veteran Supreme Court advocate representing the regulator, said that he did.

Justices Clarence Thomas and Sonia Sotomayor were among several who questioned why the state seemed to be targeting other insurance and banking products sold to the NRA — not just the “murder insurance” product that was clearly illegal.

Oral arguments ended shortly after 1 p.m. ET.

Lawyers for the New York regulator have argued that the state wasn’t going after the National Rifle Association, per se, but was rather focused on an illegal insurance product — which critics have described as “murder insurance.”

But both Justices Clarence Thomas and Sonia Sotomayor questioned why the state seemed to be going after other products as well.

“What she was seeking was a ban even on potentially lawful programs,” Sotomayor noted.

Neal Katyal, a veteran Supreme Court litigator representing the state official, said there was “nothing unusual about a punishment like this.”

Justice Samuel Alito asked the American Civil Liberties Union attorney representing the National Rifle Association to define what type of action from a public official would veer away from being permissible and cross the line into being unconstitutional – getting right to the crux of the issue in the case.

“How do you define when it goes too far?” Alito said, referring to a range of actions from a government regulator who is attempting to get certain private companies to stop working with another private entity.

“I do think that the power of the official over those to whom she is speaking is a relevant factor in the assessment,” said attorney David Cole.

A Texas National Guard soldier watches over immigrants who had crossed the US-Mexico border on March 13 in El Paso, Texas.

Once oral arguments are over today, eyes will turn to how the Supreme Court handles the case of SB 4, the controversial Texas law that allows state law enforcement to arrest and detain people they suspect of entering the country illegally.

The court has blocked the law from taking effect for now — but it would go into effect if the justices don’t act by the end of the day.

The Justice Department has argued the law would “profoundly” alter the status quo “that has existed between the United States and the States in the context of immigration for almost 150 years.”

Texas Attorney General Ken Paxton, a Republican, and other officials told the Supreme Court last week that the “Constitution recognizes that Texas has the sovereign right to defend itself from violent transnational cartels that flood the State with fentanyl, weapons, and all manner of brutality.”

Read more about the law.

Couy Griffin speaks to media after leaving federal court in Washington, DC, on June 17, 2022.

Before oral arguments began Monday, the high court said it declined to hear the appeal of a former New Mexico county commissioner who was removed from office because of his role in the January 6, 2021 insurrection – a case that was similar to the one the high court recently decided involving former President Donald Trump.

Cowboys for Trump founder and convicted Capitol rioter Couy Griffin was removed from office in 2022, marking the first time an elected official was booted under the 14th Amendment’s “insurrectionist ban” because of the US Capitol riot.

The Supreme Court’s move means the ruling barring Griffin from office will stand.

Griffin, unlike Trump, had already been found guilty of a January 6-related crime when he was disqualified from holding office. He was convicted of trespassing on Capitol grounds after a bench trial in March 2022. He was acquitted of a second misdemeanor charge of disorderly conduct.

Read more about the court’s order.

An American Civil Liberties Union attorney has begun his opening arguments on behalf of the National Rifle Association in a case challenging a New York financial regulator who persuaded banks and insurance companies to sever ties with the gun rights group.

“This was not about enforcing insurance law or mere government speech,” the attorney, David Cole, told the justices.

A majority of the Supreme Court signaled Monday that it has serious reservations with an argument raised by two conservative states that the federal government crossed a First Amendment line by attempting to persuade social media sites to remove content it deemed as misinformation.

Several conservative justices raised a series of hypothetical questions suggesting they are worried about the potential spillover from embracing the states’ legal test. They wondered: Could the FBI not ask Facebook to take down a post urging harm against public officials? Could the White House not ask X, formerly known as Twitter, to remove a post that was inaccurate or put American troops in harm’s way?

Chief Justice John Roberts and Justice Amy Coney Barrett also appeared to be poking holes in the argument raised by the states. Led by Justice Samuel Alito, several other conservatives also appeared skeptical of the Biden administration’s position.

In one exchange, Alito laid out a case for how unusual it was that federal officials were repeatedly pressuring the social media sites to take down content. And he wondered what would happen if the government made similar request of traditional media.

Alito described what the government did as a “constant pestering of Facebook.”

“I cannot imagine federal officials taking that approach to the print media,” he said.

In one particularly poignant moment, Justice Amy Coney Barrett, a conservative, pressed the states on what would happen if a social media user identified the home addresses of public officials and encouraged people to rally so that those people should be “harmed.”

Barrett asked: Could the FBI not call the social media sites and encourage them to take those posts down?

“I’m a purist on the First Amendment,” Benjamin Aguiñaga, the attorney for the states, said in response before answering affirmatively.

The justices, of course, have had some first-hand experience with similar circumstances. In the run up to the overturning of Roe v. Wade, protesters rallied outside the homes of several justices.

Barrett appeared concerned about setting a standard in this case proposed by the states that would apply widely to other situations.

Louisiana Solicitor General Benjamin Aguiñaga is promoting an argument that the Supreme Court appeared to take skeptically just weeks ago.

On Monday, Aguiñaga argued that “nothing prohibits the government” from urging social media platforms to amplify its own speech — it only becomes a First Amendment problem when the government suggests platforms remove user speech.

In a pair of recent cases on social media, however, justices expressed deep concerns about government pressure on platforms to speak in a certain, specific way. The court showed reservation about state laws that try to mandate that platforms carry all user speech without regard to its content.

Chief Justice John Roberts, whose vote will likely be key to the final Supreme Court decision, appeared to be poking holes in the argument raised by the conservative states. Different government agencies, he said, might have different views about what should be posted on social media sites.

Roberts’ question is significant and it suggested he at least has concerns about the argument that the agencies involved were able to coerce the sites.

“The government is not monolithic,” Roberts said. “That has to dilute the concept of coercion significantly, doesn’t it?”

J. Benjamin Aguiñaga, the solicitor general of Louisiana, is now fielding questions from the justices after delivering a brief opening statement in which he said that “government censorship has no place in our society.”

Justice Clarence Thomas posed the first question for Aguiñaga, asking if the government coordinating with social media companies to remove some content would violate the First Amendment in the same way that direct coercion does.

Aguiñaga answered yes.

Justice Brett Kavanaugh, often a key vote to watch on the Supreme Court, reiterated an argument raised by the Biden administration that the government talks with social and traditional media regularly to cajole and try to influence the content they publish.

Those sorts of conversations are not generally viewed as a violation of the First Amendment, in part because social and traditional media often decline to grant such requests.

Saying that he was reiterating the Biden administration’s argument in order to ensure he understood it, Kavanaugh said the government’s position is that adopting the states’ position would mean that “traditional, everyday communications would suddenly be deemed problematic.”

When it might become problematic, Kavanaugh said, is when the communications come with a threat of government action – say, a suggestion that the Federal Trade Commission might launch an investigation into a business deal involving the media companies.

The arguments in the social media case Monday are all about how tech platforms like Facebook and X are moderating content when the federal government asks them to take down posts.

But much of the debate has focused on a Supreme Court precedent from 1963.

Both sides are debating the meaning of a decision called Bantam Books v. Sullivan. That case dealt with a Rhode Island commission that had threatened to refer distributors to police if they sold books deemed to be obscene. The Supreme Court held that such “informal censorship” was unconstitutional.

The social media case’s outcome could have a broad range of impacts, according to Justice Department attorney Brian Fletcher.

Whether the US government can contact online platforms could affect “matters of public policy” on kids’ online safety and mental health, a topic that has increasingly captured the attention of Congress, the courts and the White House.

It could also affect domestic law enforcement efforts to fight child sexual exploitation on digital platforms, Fletcher said, or other criminal investigations into terrorist activity and “foreign malign influence.”

The US government’s ability to respond to public health emergencies such as Covid-19 is clearly implicated here, Fletcher said, along with safeguarding elections by pushing back on false claims about how, when and where to vote.

United States Supreme Court Associate Justice Samuel Alito.

In one key exchange, Justice Samuel Alito laid out a case for how unusual it was that federal officials were repeatedly pressuring the social media sites to take down content. And he said he wondered what would happen if the government made similar request of traditional media.

Alito described what the government did as a “constant pestering of Facebook.”

“I cannot imagine federal officials taking that approach to the print media,” Alito said.

Alito argued that the difference between traditional media and social media is that the federal government ostensibly holds the power to revoke Section 230 protections that bar the sites from lawsuits in certain situations. “It’s got these big clubs available to it,” Alito said.

Brian Fletcher, the government’s attorney, noted the context of when the communication was taking place. “This was a time when thousands of Americans were still dying every week and there was a hope that getting everyone vaccinated could stop the pandemic,” he said.

Justice Sonia Sotomayor, the first liberal to ask a question, pressed the Biden administration on what the practical effects of the restrictions imposed on the government by a lower court are.

The Justice Department attorney, Brian Fletcher, noted that the restrictions have been on hold while the administration is challenging them. But, he said, if they go into effect they could significantly impair the government’s efforts to curb the spread of things like anti-Semitic and Islamophobic content and content that’s harmful to children’s mental health.

“Or the effects they might be having on children’s mental health or national security issues like the anti-Semitic Osama bin Laden letter that was trending on TikTok at the end of last year,” he added.

United States Supreme Court Associate Justice Clarence Thomas.

Justice Clarence Thomas, one of the court’s stalwart conservatives, pressed the Justice Department on whether the only way to look at the case is through the lens of whether the government was trying to coerce the social media companies or are persuading them to make changes.

Brian Fletcher, arguing on behalf of the Biden administration, said the argument raised by the states was “very unusual” and said he couldn’t think of a similar applicable precedent.

Thomas also pressed Fletcher on the “constitutional basis for government speech.”

Part of what the Biden administration is arguing is that the government has a right to speak – and that it’s using that right to communicate with the sites about misinformation.

The Supreme Court of the United States building is seen in Washington, DC, on March 15. 

The Supreme Court began oral arguments slightly after 10 a.m. ET in an important case challenging how the Biden administration went about trying to get social media sites like Facebook and X to remove misinformation about Covid-19, the 2020 election and other issues.

The decision, expected later this year, could prove important for the 2024 election. The outcome may decide how far the Department of Homeland Security and FBI can go in flagging posts that the government believes are the work of foreign disinformation agents.

Arguing for the Biden administration is Brian Fletcher, principal deputy solicitor general and veteran litigator at the high court.

Arguing for the states is J. Benjamin Aguinaga, the solicitor general of Louisiana.