The Coercion Case against the Biden Administration in the ‘Bayesian Court of Arbitrary Power’ and the High Court of First Amendment

Ruemmler, who was a White House counsel, said that the president couldn’t remove legal protections for social media companies. Only the congress can do that.

These are large companies. They don’t scare easy,” he says, adding that there always are competing political imperatives in public policy. “That’s life in the big leagues,” he said at NYU.

The Biden administration, for its part, rebuts the plaintiffs’ coercion allegations in unusually forceful terms. Weissmann notes that the government uses everything but the “L-word” in its brief.

To cite just one example, the government rebuts the coercion claim drawn by the lower court from a White House email to Facebook. Are you serious? the email says, adding, “I want an answer on what happened here and I want it today.” Sounds bad, the government says, until you learn that the “admittedly crude email” concerned “a technical problem affecting the President’s own Instagram account—it had nothing to do with moderating other users’ content.”

The appeals court said that individuals at those agencies likely violated the First Amendment by seeking to coerce social media platforms into moderating or changing their content about COVID-19, foreign interference in elections and even Hunter Biden’s laptop. The Supreme Court put that ruling on hold to consider tricky issues in the case.

The case of Bailey’s Social Media Attack against the Biden Administration, the National Rifle Association, and the U.S. Department of Financial Services

There isn’t a clear partisan line in Monday’s case. Some politicians have a way of changing sides based on what’s in the speech.

Andrew Bailey, the Missouri Attorney General, brought this case accusing the Biden administration of being the most massive attack against free speech in United States history. He was concerned that Target was selling merchandise for a Pride campaign and he threatened to take legal action against them.

Presidents of both parties and members of Congress can and do say plenty of nasty things about social media companies in public; it’s the private communications that make critics suspicious, according to Jameel Jaffer, executive director of the Knight First Amendment Institute.

Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. It sounds easy, but applying that rule is much more difficult than stating what the rule is.

Just where the Supreme Court justices stand on this or other social media questions before the court this term is unclear. The three most conservative justices of the Supreme Court, Clarence Thomas, Neil Gorsuch and Samuel Alito, wouldn’t have stopped the lower court’s decision while the high court was considering the case. They would have permitted it to take effect.

After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The former head of the Department of Financial Services was sued by the National Rifle Association.

The NRA charged that during an agency investigation into so-called “murder insurance,” the Department of Financial Services violated the NRA’s free speech rights by issuing letters and news releases that dissuaded financial institutions from doing business with the gun rights advocacy group. “Murder insurance” is the derogatory term for insurance that covers the costs of using firearms to shoot another person, and it is illegal in New York. The 2nd US Circuit Court of Appeals found that the news releases and letters were appropriate government speech and dismissed the complaint from the NRA.

“When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. Lawyer Younes says that the pressure was to censor certain viewpoints.

But the plaintiffs in the case have produced dozens and dozens of quotes from government emails that they say prove the government’s coercive behavior.

Both conservative and liberal justices on the Supreme Court seemed uncertain about imposing broad limits on the government’s ability to communicate with social media companies about problematic content they think should be removed.

That is hardly the picture painted by the other side in this case. They claim their speech was edited. Two of the plaintiffs are epidemiologists who were advocates of exposing most people to get COVID-19 in order to establish herd immunity instead of imposing lockdowns, masks and other steps taken by both the Trump and Biden administrations. The CDC has argued that there is no such thing as herd immunity with a virus like the coronavirus that causes COVID-19, which has constantly morphed and mutated.

The Biden administration notes that under established First Amendment precedent, the government itself is entitled to express its views and to try to persuade others. In its brief, the government says that the central dimensions of presidential power includes the use of the office’s bully pulpit to attempt to persuade Americans to act in favor of the public interest.

The government is using social media companies to censor speech, according to a lawyer who represents people who claim they were removed from the internet. And that, she contends, is unconstitutional state action.

The government notes that officials in both Republican and Democratic administrations have interacted regularly with social media companies. Indeed, from the beginning of the pandemic in the Trump administration, the companies themselves reached out to government health agencies for guidance on what was and was not reliable medical information.

Ruemmler, who was the White House counsel during the Obama administration, said she was particularly struck by the lower court opinions because they didn’t recognize the vast majority of the communication between the government and the social media companies.

If you have a question about the purpose of the government, then you should ask. She said during a panel discussion at New York University’s School of Law that it was to protect the health and safety of its citizens.

The FBI, the State Department, and the government: Five Reasons Why You Shouldn’t Write Another Editorial about Terrorism in Social Media

The FBI is one agency that makes similar arguments about their dealings with social media companies. Private companies and the government benefit from this type of back-and-forth, according to a former FBI general counsel.

“Let’s say that somebody from the Department of Defense alerts you to information about a terrorist group that is identifying” the location and address of a State Department employee abroad and calling for violence against that individual. Weissman says that the general counsel of the FBI would usually alert the social media company and have a conversation that would seem to us to be in violation of their policy. Obviously that’s for you to decide, but you can understand why … There is a grave worry on our part.

The response, most of the time, says Weissmann, is that the social media company is grateful for the information and often takes down the post because it does violate company policy but was missed by the company’s algorithms. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.

“I thought your principle argument was that … coercion doesn’t apply only when the government says, ‘Do this, and if you don’t do this, there’s going to be legal consequences,’” Alito said, “but that it’s a more flexible standard, and you have to take into account the whole course of the relationship.”

The states received friendlier questioning from Alito and conservative Justice Clarence Thomas. Does the states have a chance of making their case if they can show the governmentcoordinated with the platforms? Aguiñaga said they could. At one point Alito tried to steer discussion of the states’ argument back to a more specific question about coercive behavior.

Conservative Justice Neil Gorsuch also expressed frustration with what he called an “epidemic” of “universal injunction[s],” questioning the remedy offered by the lower court, which sought to block a large swath of communication. Aguiaga said the injunction reflected the government’s enterprise in the case.

To laughter, she said that she had had experience encouraging press to suppress their own speech. “You just wrote a bad editorial — here are the five reasons you shouldn’t write another one. 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.”

The government and platforms are trying to work on issues like covid, which does not seem right to him. In a scenario like the Pandemic where platforms chose to advance good information and reach out to the government, it would be an open door.

After Aguiñaga began responding that he’s a “purist on the First Amendment,” Coney Barrett interrupted and said, “Do you know how often the FBI makes those kinds of calls?”

Aguiaga was asked by a Liberal Justice if he could imagine how a ruling in favor of the states would play out. She imagined a social media challenge among teens that encouraged them to jump out of windows, leading to injuries and deaths. Is it your view that the government can’t even make a public emergency of this problem, as social media platforms can take down information that is inciting this problem? Jackson asked a question.

The government can’t identify every piece of content that it wants to not be in the public sphere, as a First Amendment problem.

Chief Justice John Roberts, a conservative, followed up on Jackson’s hypothetical, asking whether encouraging platforms to take something down rises to the level of coercion. He added that Jackson’s example was not about eliminating a viewpoint but rather an instruction for a dangerous game.

Later, Jackson said, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods … I have heard you say that the government can post its own speech, but it won’t happen in a scenario where kids are not safe.

The government could use the bully pulpit to encourage them to do that, said Aguiaga. But he took issue with private communications instructing platforms on what they should do.

The Texas Solicitor General, who argued on behalf of the states and individuals, seemed skeptical of the arguments made by Benjamin Aguiaga, the Louisiana Solicitor General. The justices appeared to worry about the far-reaching consequences of limiting the ways the government is able to speak with tech platforms.