Most of the judges of the American Supreme Court on Monday showed themselves reluctant to prevent the executive branch from intervening with social networks to obtain the removal of content that it considers problematic, particularly in health matters.
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The nine judges examined the decision of an ultraconservative appeals court limiting contacts between the White House as well as federal agencies, including health authorities and the FBI, and Internet giants, in the name of the First Amendment of the Constitution which guarantees freedom of expression.
This decision, suspended by the Supreme Court until further notice, ordered them to refrain from “putting pressure” on these companies or “significantly encouraging” them to remove content accused by the administration of Democratic President Joe Biden of misinformation about vaccination against Covid-19 or election results.
“This case should be about the fundamental distinction between persuasion and coercion,” argued Brian Fletcher, for the Department of Justice.
He invited the judges to reaffirm that the authorities’ speech only “crosses the line of coercion if it objectively involves a threat of hostile action” on the part of the administration.
The chief justice of the conservative majority, John Roberts, observed that the federal government was “not monolithic” and that a disagreement with one agency would not necessarily imply negative fallout for the social network concerned.
“It dilutes the concept of coercion, doesn’t it,” he objected to Benjamin Aguinaga, legal advisor for Louisiana (southeast), one of the two states led by Republicans, along with Missouri, in the origin of the complaint.
The plaintiffs’ representative’s denunciations of “government censorship” met with little response among the judges, with the exception of conservative Samuel Alito, who expressed concern about “constant harassment from Facebook and other networks” of from the White House and other federal officials.
Several of his colleagues, regardless of their orientation, were rather alarmed by the consequences of a decision which would prohibit the government from requesting the suppression of publications dangerous to minors or to national security.
“To punish”
The Court then heard arguments in a related case pitting America’s powerful gun lobby, the National Rifle Association (NRA), against New York state authorities.
The NRA accuses them of having caused it to lose “millions of dollars” by dissuading insurance companies and banks from dealing with it because of the “risk to their image”.
Following the Parkland, Florida (southeast) high school shootings in February 2018, in which a former student shot dead 14 students and three adults in a matter of minutes, a New York state official publicly recommended that insurance companies and banks dissociate themselves from the NRA.
“They encouraged people to punish the NRA precisely because, and only because, of its political views,” said the lobby’s lawyer, David Cole.
The Supreme Court’s decision in these two cases is not expected for several months.
In another case, last week she set out two conditions for a manager’s publications on his personal social networks also used to disseminate information of general interest to fall within his duties and not his private life.
In this case it was a municipal official in Michigan (north) who had blocked one of his constituents.
In a unanimous decision, the judges ruled that publications fall outside the private sphere when they relate to an area in which the person responsible has authority and invokes this authority.
