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Supreme Court tackles social media and free speech

ARI SHAPIRO, HOST:

At the Supreme Court today, a majority of the justices seemed highly skeptical of claims that federal officials may be broadly barred from contacts with social media platforms. At issue was a sweeping 5th Circuit Court of Appeals decision. That ruling blocked officials from the White House, the FBI, the CDC and other agencies from asking social media companies to remove certain content. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Five individuals and two Republican-dominated states claim that the government is violating the First Amendment by systematically pressuring social media companies to take down what the government sees as false and misleading information. The Biden administration counters that White House and agency officials are well within their rights to persuade social media companies about what they see as erroneous information about COVID-19 or foreign interference in an election or even election information about where to vote. Two justices who once worked in the White House - Brett Kavanaugh, a Trump appointee, and Elena Kagan, an Obama appointee - were the most outspoken about the long history of government contacts with media companies. Here's Kavanaugh.

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BRETT KAVANAUGH: I've experienced government press people throughout the federal government who regularly call up the media and berate them.

TOTENBERG: Justice Kagan echoed that sentiment.

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ELENA KAGAN: Like Justice Kavanaugh, I've had some experience encouraging press...

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KAGAN: ...To suppress their own speech. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.

TOTENBERG: She and Justice Barrett postulated that the FBI might contact social media companies to tell them that while they might not realize it, they've been posting information from a terrorist group aimed at secret recruitment. Louisiana's solicitor general, Benjamin Aguinaga, argued that when government officials contact social media companies, even encouraging, amounts to unconstitutional pressuring. That prompted this from Justice Barrett.

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BENJAMIN AGUINAGA: I mean...

AMY CONEY BARRETT: Just plain, vanilla encouragement, or does it have to be some kind of, like, significant encouragement? - because encouragement would sweep in an awful lot.

TOTENBERG: Aguinaga, however, didn't have a clear line of differentiation, except to claim that pressuring print and other media outlets is different from pressuring social media platforms. What about publishing classified information, asked Justice Kavanaugh. Are you suggesting the government can't try to get that taken down? Or what about factual inaccuracies? Justice Jackson asked about matters of public safety. What if young people were being injured or killed, carrying out a new online fad that called for jumping out of windows? Couldn't the government legitimately ask platforms to take that down? When the Louisiana solicitor general fudged, Chief Justice Roberts followed up.

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JOHN ROBERTS: Under my colleague's hypothetical, it was not necessarily eliminate viewpoints. It was to eliminate some game that is seriously harming children around the country. And they say, we encourage you to stop that.

AGUINAGA: Your honor, I agree. As a policy matter, it might be great for the government to be able to do that. But the moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem.

TOTENBERG: Several justices questioned the record in the case. Justice Kagan said she did not see even one item that supported barring government contacts. Justice Sotomayor put it this way.

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SONIA SOTOMAYOR: I have such a problem with your brief, Counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn't happen to. I'm not sure how we get to prove direct injury in any way.

TOTENBERG: Representing the Biden administration today, Deputy Solicitor General Brian Fletcher took incoming fire, mainly from Justices Alito and Thomas. But he stuck to his contention that when the government seeks to persuade a social media platform to take down a post, that is an attempt at persuasion not coercion. Unlike some of his conservative colleagues, Justice Alito was skeptical of all aspects of the government's argument.

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SAMUEL ALITO: There is constant pestering of Facebook and some of the other platforms, and they want to have regular meetings. They suggest rules that should be applied. And I thought, wow, I cannot imagine federal officials taking that approach to the print media.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.