WASHINGTON — The Supreme Court on Monday will weigh the circumstances under which the government can be found to cross the line from persuasion to coercion, hearing arguments in cases involving two contentious issues: problematic social media posts and gun rights.
The court will first hear arguments over concerns that the Biden administration’s contacts with social media companies, including efforts to have content removed on issues like Covid-19, constituted unlawful coercion.
The justices will then hear a similar case on claims that a New York state official inappropriately pressured companies to end ties with the National Rifle Association, a leading gun rights group.
At issue is a practice known as “jawboning,” in which the government leans on private parties to do what it wants, sometimes with the implicit threat of adverse consequences if demands are not met. Those challenging the government actions say that in each case there was a violation of the Constitution’s First Amendment, which protects free speech rights.
“Both cases are about the extent to which the government should be allowed to interject itself into public debate,” said Alex Abdo, a lawyer at the Knight First Amendment Institute at Columbia University. While the government has a right to participate, it should not have “too much of a hand in distorting our conversations,” he added.
Abdo’s group filed a brief in the social media case supporting neither side but asking for clarity on the issue.
In the social media case, Republican attorneys general in Louisiana and Missouri, along with five social media users, filed the underlying lawsuit, alleging that U.S. government officials went too far in putting pressure on platforms to moderate content. The individual plaintiffs include Covid-19 lockdown opponents and Jim Hoft, the owner of the right-wing website Gateway Pundit.
The lawsuit makes various claims relating to activities that occurred in 2020 and before, including efforts to deter the spread of false information about Covid-19 and the presidential election. Donald Trump was president at the time, but the district court ruling focused on actions taken by the government after President Joe Biden took office in January 2021.
Louisiana-based Judge Terry Doughty in July of last year barred officials from “communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The New Orleans-based 5th U.S. Circuit Court of Appeals narrowed the scope of Doughty’s injunction. But the appeals court still required the White House, the FBI and top health officials not to “coerce or significantly encourage” social media companies to remove content the Biden administration considers misinformation.
When agreeing to hear the case, the Supreme Court in October blocked the appeals court ruling, with three conservative justices noting they disagreed with that decision: Samuel Alito, Clarence Thomas and Neil Gorsuch.
NRA’s claims against New York
In the NRA case, the group claims that its free speech rights were violated by the actions of Maria Vullo, then the superintendent of the New York state Department of Financial Services.
Vullo’s office had been investigating insurance companies that the NRA had worked with to provide coverage for members. The NRA alleged that Vullo, in meetings with insurance companies, made “back channel threats that they cease providing services to the NRA.”
Speaking out after the 2018 school shooting in Parkland, Florida, in which 17 people were killed, Vullo also urged insurance companies and banks to reconsider any relationships they had with gun rights-affiliated groups.
The NRA is appealing a 2022 ruling by the New York-based 2nd U.S. Circuit Court of Appeals, which said Vullo’s actions did not constitute unlawful conduct.
Vullo argued in her defense that it was part of her job to warn companies about the “reputational risk” of doing business with the NRA.
The case attracted additional attention after the American Civil Liberties Union, which often backs liberal causes, signed on to represent the NRA. The ACLU said that while it disagrees with the NRA’s positions, it would defend the gun rights group’s right to speak.
