by Jason Hancock, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

March 18, 2024

The U.S. Supreme Court will hear arguments Monday morning in a potentially landmark case involving the federal government’s efforts to encourage social media companies to remove misinformation from their platforms.

The lawsuit was filed in 2022 by attorneys general in Missouri and Louisiana. It alleges the federal government colluded with social media companies such as Twitter, now called X, and Facebook to suppress the freedom of speech.

The government specifically targeted conservative speech, the attorneys general contend, across a range of topics — from the efficacy of vaccines to the integrity of the 2020 presidential election.

Monday’s oral arguments will begin at 9 a.m. CDT, though which order cases will be heard is not yet public. Audio of the arguments can be live streamed at https://www.supremecourt.gov/

Missouri Attorney General Andrew Bailey, who inherited the lawsuit from his predecessor, called the federal government’s actions “the biggest violation of the First Amendment in our nation’s history.

“We’re fighting to build a wall of separation between tech and state to preserve our First Amendment right to free, fair and open debate,” Bailey said in an emailed statement.

In a statement Thursday, Louisiana Attorney General Liz Murrill said the case has uncovered 20,000 pages of documents that reveal an “extensive censorship campaign” on the part of President Joe Biden.

“George Orwell wrote ‘Nineteen Eighty-Four’ as a warning against tyranny,” Murrill said. “He never intended it to be used as a how-to guide by the federal government.”

U.S. Solicitor General Elizabeth Prelogar, defending the Biden administration in the lawsuit, said in a filing asking the Supreme Court to take the case that the government was entitled to express its views and persuade others to take action.

“A central dimension of presidential power,” she wrote, “is the use of the office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the president believes would advance the public interest.”

Social media companies are private entities, Prelogar wrote, that made independent decisions about what to remove.

Monday’s case will be argued by Benjamin Aguiñaga, the solicitor general for the Louisiana attorney general. Considered a rising star in conservative legal circles, Aguiñaga served as a law clerk for Judge Edith Jones, a conservative Ronald Reagan appointee on the 5th U.S. Circuit Court of Appeals, and Judge Don Willett, then on the Texas Supreme Court.

Aguiñaga was also a member of U.S. Sen. Ted Cruz’s Senate Judiciary Committee staff and chief of staff in the Civil Rights Division of the U.S. Department of Justice during the Trump administration.

Most notably, Aguiñaga served as a clerk for Justice Samuel Alito during the Supreme Court’s 2018-2019 term.

‘Immensely important case’

In 2022, U.S. District Judge Terry Doughty, a court nominee of President Donald Trump, ruled that officials under both Biden and Trump coerced social media companies to censor content over concerns it would fuel vaccine hesitancy during the COVID-19 pandemic or upend elections.

The 5th U.S. Circuit Court of Appeals in New Orleans prohibited the White House, the Surgeon General’s Office, the FBI, and the Atlanta-based Centers for Disease Control and Prevention from having practically any contact with the social media companies. It found that the Biden administration most likely overstepped the First Amendment by urging the major social media platforms to remove misleading or false content.

The Supreme Court placed a temporary stay on the order in October until it decides the case.

Three conservative justices — Alito, Clarence Thomas and Neil Gorsuch — dissented from the decision to block the injunction, with Alito calling the court’s action “highly disturbing” and arguing it threatened to curtail the discussion of unpopular political views online.

Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, called the lawsuit an “immensely important case that will determine the power of the government to pressure the social media platforms into suppressing speech.”

“The government has no authority to threaten platforms into censoring protected speech,” Abdo said, “but it must have the ability to participate in public discourse so that it can effectively govern and inform the public of its views.”

The injunction put in place by the lower courts was way too broad, said David Greene, civil liberties director for the Electronic Frontier Foundation.

“Government co-option of content moderation systems is a serious threat to freedom of speech,” Greene said. “But there are clearly times when it is permissible, appropriate and even good public policy for government agencies and officials to inform, communicate with, attempt to persuade or even criticize sites —free of coercion— about the user speech they publish.”

The federal government must be allowed to share information with social media companies in order to ensure the integrity of elections, said Gowri Ramachandran, deputy director of the elections and government program at the Brennan Center for Justice at New York University School of Law.

Having accurate information about elections is critical to American democracy, Ramachandran said, and the proliferation of false information through social media threatens elections and election officials.

“We already had a situation where there was attempted foreign interference during the 2016 election,” she said. “After that, Mark Zuckerberg, the CEO of Facebook, said if there’s foreign agents putting propaganda out on his platform, ‘I want to know. Please tell me.’ And so then the government started doing that, and I wouldn’t characterize it as being an instance of even anything close to government censorship.”

Ties to misinformation, conspiracy theories

As the case has meandered through the courts, it has added several co-plaintiffs with long histories of spreading misinformation and debunked conspiracy theories.

That includes Jim Hoft, founder of the right-wing conspiracy website Gateway Pundit, who has built a career on promulgating conspiracies on a wide range of topics, from the 2018 Parkland school shooting to former President Barack Obama’s birth certificate.

More recently, Hoft has been among the biggest purveyors of election fraud lies. He currently faces a defamation lawsuit in St. Louis circuit court filed by two Georgia election workers who faced death threats following Gateway Pundit’s false stories about a vote-rigging scheme.

During appeals court arguments in August, the attorneys general specifically cited Hoft, claiming that he is “currently subjected to an ongoing campaign by federal officials to target the content on his website.”

Another named co-plaintiff in the case is Jill Hines. She is co-director of Health Freedom Louisiana, an anti-vaccine organization that, among other things, advances the theory soundly rejected by medical experts that vaccines are a cause of autism.

Louisiana Illuminator Editor Greg LaRose contributed to this report.

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.