Which way will the Supreme Court lean on the government talking to the platforms?

In July, Terry Doughty, a federal judge in Louisiana, ruled that discussions between the federal government and social media platforms as to what content they should or shouldn’t allow—around the efficacy of COVID vaccines, for example—constituted an attempt to coerce the platforms, and as such were a violation of the First Amendment’s protection against government interference in speech. Indeed, Doughty described this kind of conduct as the “most massive attack against free speech in United States history.” He ordered officials from a range of government agencies to stop talking to tech companies about content moderation, and also prohibited these officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” certain academics whose work focuses on social media.

As I explained at the time, the allegation that the government has colluded with social media companies to censor speech is not new…

Two weeks ago, the case moved forward again: the Court of Appeals for the Fifth Circuit agreed with Doughty that the White House, the surgeon general, the Centers for Disease Control and Prevention, and the FBI coerced the platforms into suppressing speech, and that this was a violation of the First Amendment.

Although the appeals court upheld the general thrust of Doughty’s decision, however, it didn’t agree with a number of the restrictions he imposed. Of the ten specific prohibitions on government behavior, the Fifth Circuit threw out nine as being too broad, and modified the tenth, according to the Washington Post, limiting it to efforts to “coerce or significantly encourage social media companies to remove, delete, suppress, or reduce…posted social media content containing protected free speech.”

The Biden administration, however, was still not satisfied: last week, Elizabeth Prelogar, the solicitor general, asked the Supreme Court to block the order, calling it “unprecedented” and saying that it should not be allowed to stand. One of the cornerstones of presidential power, Prelogar argued, is the ability to “seek to persuade Americans—and American companies—to act in ways that the president believes would advance the public interest,” and the injunction, she wrote, would impose “grave and irreparable harms” on both the government and the public…

Many observers believe that the Supreme Court will decide to hear the Biden administration’s appeal of the Fifth Circuit’s order. But even if it doesn’t, we might get another chance to see how (or whether) the court believes laws like the First Amendment apply to the platforms.

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