Home / General / Supreme Court unlikely to rule that public officials communicating with the social media companies violates the First Amendment

Supreme Court unlikely to rule that public officials communicating with the social media companies violates the First Amendment

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Today, the Supreme Court heard oral arguments in a case appealing a 5CA ruling that the Biden administration violated the First Amendment when it communicated with social media companies about disinformation. The ruling was idiotic, based on yet another reactionary misinformation campaign that completely distorted the underlying facts of the case. But presenting a set of non-facts to the Supreme Court is not necessarily a barrier to your First Amendment claim, so there was some reason to be wary. Fortunately, it looks like this time the wingnut Attorneys General presented too much bullshit for a majority of the Court to stomach:

An effort by two Republican-led states to limit the Biden administration’s interactions with social media companies met a rocky reception at the Supreme Court on Monday, with several justices questioning the states’ legal theories and factual assertions.

A majority of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.

Justices Brett M. Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage were, they said, part of a valuable dialogue that was not prohibited by the First Amendment.

Members of the court also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five individuals — had suffered the kind of injury that gave them standing to sue. They also suggested that a broad injunction prohibiting contacts between many officials and the platforms was not a proper remedy in any event.

Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your brief,” she told J. Benjamin Aguiñaga, Louisiana’s solicitor general. “You omit information that changes the context of some of your claims.”

Mr. Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”

“Not as forthcoming as it should have been” is quite a remarkable admission to make in open court. And it will probably still be good enough for three votes.

The fundamental problem with the argument is that no matter how much TWITTER FILES types claim otherwise communication is not coercion:

Justices Elena Kagan and Brett M. Kavanaugh, who previously worked in Democratic and Republican administrations, respectively, suggested that such exchanges were routine occurrences and did not amount to government censorship or coercion in violation of the constitutional right to free speech.

Chief Justice John G. Roberts Jr. seemed to agree, noting that the federal government has numerous agencies that do not always speak with a single voice.

“It’s not monolithic,” he said in an exchange with the attorney representing Louisiana. “That has to dilute the concept of coercion significantly. Doesn’t it?”

This will be another classic case of an outcome that will be coded “liberal” by political science models, but it’s a sign of how out-of-control 5CA is that an argument this dumb needed the Supreme Court to intervene in the first place.

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