The justices must distinguish between persuading social media sites to take down posts, which is permitted, and coercing them, which violates the First Amendment.
The Supreme Court heard arguments on Monday on whether the Biden administration violated the First Amendment in combating what it said was misinformation on social media platforms.
It is the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era
The court is hearing a related case on the N.R.A
The question in the social media case is in one sense about government power over the internet. But at bottom it is about something more fundamental: striking the right balance between government advocacy for its policies, which is permissible, and coercion backed by threats of punishment, which is not.
The justices will return to that tension in Monday’s second argument, over whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association after the 2018 school shooting in Parkland, Fla
Heightening the problem of the flawed factual record undergirding the litigation, Justice Sotomayor starkly accuses Aguiñaga himself of distorting facts of what happened: “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 — at least in one of the defendants, it was her brother that something happened to, not her. I don’t know what to make of all this because I am not sure how we get to prove direct injury in any way.”This exchange between Justice Kagan and Aguiñaga, in which the Louisiana lawyer concedes that it can be OK for the government to provide information to the platforms under some circumstances, shows the problem with having an unreliable factual record compiled by Judge Doughty about what actually happened. Fletcher is citing the district court’s findings to say the government crossed the line into official censorship, but are the specifics accurate?
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