The US Supreme Court heard oral arguments Monday in a free speech challenge to the Biden administration’s encouragement of platforms to remove posts that officials deemed misinformation, including posts relating to elections and COVID-19. The lawsuit, filed by the attorneys general of Missouri and Louisiana along with five individuals, raises critical questions about the intersection of government communication, social media and the right to free speech. 

The first issue in the case is whether states and individuals challenging these communications have what is called Article III standing, which determines whether a party can go before a federal court. To establish standing, a plaintiff must meet specific criteria showing the plaintiff has suffered a particular injury, that the injury is traceable to the opposing party, and that a favorable judicial decision can remedy the injury.

The second issue is whether the government’s actions transformed private social media companies’ content-moderation decisions into what is legally termed “sanctioned state action.” This refers to a situation where the government effectively controls or directs the actions of a private entity, in this case, social media companies. If the court finds that the moderation decisions were “sanctioned state action,” it could weigh whether such action violated citizens’ First Amendment right to free speech.

Finally, the case asks whether a lower court’s injunction terms restricting government contact with social media companies were proper. 

As the federal government began its oral argument, Principal Deputy Solicitor General Brian Fletcher said that the states and individuals challenging the law principally relied on misleading past instances when their social media posts and accounts were subject to moderation with no traceable link to the government. Additionally, the government argued that the executive branch has collaborated with and critiqued the media throughout history. It contended that the administration’s actions were intended to work with social media to combat misinformation and to protect public health and democratic processes. 

The federal government brief emphasizes that the FBI, as a law enforcement agency, is responsible for reporting instances of potential terrorist activity to social media platforms. However, the decision to restrict or remove content remains with the private company, highlighting the balance between government intervention and private platform autonomy. The government acknowledged:

Of course, the government cannot punish people for expressing different views, [b]ut so long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views strongly and private actors change their speech or conduct in response.”

Justice Samuel Alito challenged the government on why standing was being questioned and pointed out that the district court found that the injury was traceable to the government’s actions and that the US Court of Appeals for the Fifth Circuit accepted that finding.

The respondents’ attorney, Benjamin Aguinaga, argued that the federal government’s efforts to restrict misinformation about COVID-19 vaccines and the 2020 election infringed upon their First Amendment rights. They contended that these restrictions amounted to censorship and hindered open discourse on critical issues. Further, the respondents claimed to have standing because the government violated their right to “receive information and ideas.” “[E]ven if it was not their posts directly being taken down, it was restricted content they had the right to see,” Aguinaga asserted. The respondents said that the government’s conduct constituted “significant encouragement as it involves deep government entanglement in private decision-making and constitutes coercion because federal officials use explicit and implicit threats and pressure to bend platforms to the government’s will.”

Justice Sonia Sotomayor questioned the respondents’ claim that they were harmed because the posts at issue were not produced by the respondents directly but were instead instances of misinformation that the respondents wanted to repost.

The arguments come after the US Court of Appeals for the Fifth Circuit partly affirmed a lower court’s preliminary injunction that prevented Biden administration officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” The appeals court vacated most of the injunction but modified the portion proscribing pressuring companies to remove protected speech.

The justices have until June 2024 to issue a final ruling.