News Analysis: Missouri’s social media suit likely to lose in Supreme Court: Jawboning ‘happens thousands of times a day’

By William H. Freivogel

Judging from the comments this week from conservative justices on the U.S. Supreme Court, Missouri and its far-right ally The Gateway Pundit are likely to lose their attempt to silence federal officials who press social media companies to take down false or dangerous posts.  

Justices Brett Kavanaugh, Amy Coney Barrett and Chief Justice John Roberts expressed skepticism toward the claims by Missouri and Louisiana that federal officials violated the First Amendment by pressuring social media companies to take down false posts about Covid, national security threats and election denial. The court’s three more liberal justices seemed to agree.

Justice Samuel Alito was friendly to the Missouri/Louisiana challenge. “There is constant pestering of Facebook and some of the other platforms, ” Alito said. The officials “want to have regular meetings,” and they suggest rules to apply to content moderation. “Wow, I cannot imagine federal officials taking that approach to the print media?'”  

(Photo by Thomas Hawk via Flickr)

But it wasn’t hard to imagine for Justices Kavanaugh and Elena Kagan. They had done it before.

Justice Kavanaugh, who served in the George W. Bush White House, said government press aides “regularly call up the media and berate them.”

Kagan, who served in the Obama administration put it this way: “Like Justice Kavanaugh, I’ve had some experience encouraging the press to suppress their own speech,” she said. “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.”

On a humorous note, the chief justice interjected that he wanted to make it clear he “had no experience coercing anybody.” But he suggested he did not buy the Missouri/Louisiana argument. 

He chimed in to support a TikTok hypothetical posed by Biden nominee Ketanji Brown Jackson who asked if the government would be powerless in the face of an online fad promoting a contest of “teens jumping out of windows at increasing elevations,” where children were injured or killed. 

When Louisiana Solicitor General  J. Benjamin Aguiñaga suggested the government couldn’t act to get the posts taken down because it would be discriminating against a speaker because of the content of the speech, the chief justice said,  “Under my colleague’s (Jackson’s) hypothetical, it was not necessarily to eliminate viewpoints.” The government’s purpose would be to end “some game that is seriously harming children around — around the country….”

Justice Barrett asked Aguiñaga whether the FBI would be powerless if he and other Louisiana officials were doxed by opponents. Aguiñaga suggested the FBI couldn’t act. “If what the FBI is trying to do is trying to persuade a speech intermediary to take down a private third party’s speech,” he said, that would be “an abridgement of speech.”

The positions of the chief justice and Justices Kavanaugh and Barrett are important because they together with the liberals would make a six-justice majority for overturning lower court orders won by Missouri and Louisiana that would cut off conversations between the government and social media moderators.

In fact those three justices already have joined with the liberals to delay the effect of the lower court decision in Missouri’s favor, so their skepticism toward the states’ arguments wasn’t surprising.

Nor was it surprising that the three most conservative justices on the court, Justices Alito, Neil Gorsuch and Clarence Thomas seemed sympathetic to the states.

Justice Sonia Sotomayor told the Louisiana solicitor general that she was unhappy with the states’ brief. “I have such a problem with your brief,” she told Aguiñaga. “You omit information that changes the context of some of your claims.”

Techdirt and Slate have published detailed analyses of the mistakes and distortions in the Missouri/Louisiana brief and the district court decision in the states’ favor released last July 4 by U.S. District Judge Terry Doughty. The states filed the complaint in the Western District of Louisiana where it was almost certain to be heard by Doughty, a Trump appointee who has ruled against Biden in other Covid-related cases. Slate asserts his opinion was built “atop a heap of fake facts.”

 Missouri allies with Gateway Pundit

There was no mention in court of The Gateway Pundit, the St. Louis news site run by Jim and Joe Hoft and known as one of the most notorious purveyors of disinformation in the country. 

When former Attorney General Eric Schmitt, predecessor to Andrew Bailey, added Hoft to the lawsuit, former Missouri Supreme Court Justice Michael Wolff told GJR that “by adding Hoft to the case and giving him the state’s imprimatur, Schmitt has essentially normalized him.” 

The Pundit’s March 18 story on the oral argument painted a much different picture than most professional media. Here was its headline:

The story went on to say that  “Kentaji-Brown Jackson dropped a stunning First Amendment bomb” by saying that Aguiñaga’ view on her hypothetical about children jumping out of windows “has the First Amendment hamstringing the government in significant ways in the most important time periods.”

Not only did the Pundit misspell Ketanji several ways, but it also was part of a viral narrative distorting what the newest justice on the court had said. Reason, a libertarian magazine, pointed out how conservative media and politicians jumped on the hamstringing comment to make the distorted claim that the justice didn’t understand the First Amendment. Reason reported this roundup of comments in conservative media:

“Jackson raises eyebrows with comment that First Amendment ‘hamstrings’ government,” wrote Fox News. “Leftists want unlimited government — which is why they hate the Constitution,” lamented The Federalist. It was “literally one of the craziest things I’ve ever seen,” said Rep. Jim Jordan (R–Ohio).

Also common in the conservative media was the claim repeated by the states that the government’s pressure to take down posts was “censorship” and the biggest blow to the First Amendment in history.

One person making that claim was Missouri Solicitor General Josh Divine in an interview with Scotusblog about the case in which he characterized the government’s actions as the “most massive attack against free speech in United States history.” Divine is an up-and-coming national conservative figure who clerked for Justice Thomas, was Sen. Josh Hawley’s chief counsel and a member and speaker for the Federalist Society.

As important as the Missouri case could be, it also might fizzle. The court spent a portion of the two hours of oral arguments considering whether those suing the federal government had legal standing. If they don’t, the case might not be decided on its merits.

Editor’s Note: For more an analysis of the internet cases facing the courts this term , read GJR past reporting.

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar and covered the Supreme Court. He is the publisher of Gateway Journalism Review.

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