In Washington, the Supreme Court is set to tackle a significant question this Monday. The question is about when government actions shift from being persuasive to becoming coercive. This discussion will cover two hot-button topics: controversial social media posts and the issue of gun rights.
The first case the court will examine involves the Biden administration’s interactions with social media companies. There’s concern that the administration’s efforts to get certain content removed, especially content related to Covid-19, might have crossed the line into unlawful coercion.
Following that, the justices will delve into a case that involves claims against a New York state official. This official is accused of improperly pressuring companies to sever their connections with the National Rifle Association (NRA), a prominent advocate for gun rights.
At the heart of these cases is a concept known as “jawboning.” This term refers to the government’s attempts to influence private entities to follow its wishes, sometimes hinting at negative consequences if these wishes are not fulfilled. The challengers in both instances argue that such government actions violate the Constitution’s First Amendment, which safeguards the right to free speech.
“Both cases revolve around how much the government can involve itself in public discussions,” says Alex Abdo, a lawyer from the Knight First Amendment Institute at Columbia University. He emphasizes that while government participation is acceptable, it shouldn’t overly manipulate our discussions.
Abdo’s organization has submitted a brief in the social media lawsuit. They’re not taking sides but are calling for clearer guidelines on this matter.
In the social media lawsuit, Republican attorneys general from Louisiana and Missouri, along with five social media users, are the plaintiffs. They argue that U.S. government officials have exerted undue pressure on platforms to control content. Among the individual plaintiffs are opponents of Covid-19 lockdowns and Jim Hoft, who runs the right-wing website Gateway Pundit.
The lawsuit points to various actions taken in 2020 and earlier. These actions aimed to curb the spread of misinformation about Covid-19 and the presidential election. Although these efforts began under President Donald Trump, the focus of the district court’s ruling was on actions taken after President Joe Biden assumed office in January 2021.
In July of the previous year, Louisiana-based Judge Terry Doughty issued an injunction. This injunction prevented officials from communicating with social media companies in any way that could be seen as urging or pressuring them to censor content protected under free speech.
The 5th U.S. Circuit Court of Appeals, based in New Orleans, later modified Doughty’s injunction. However, it still restricted the White House, the FBI, and top health officials from coercing or significantly encouraging social media companies to remove what the Biden administration deems as misinformation.
When the Supreme Court decided to hear the case in October, it temporarily blocked the appeals court’s ruling. Three conservative justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—expressed their disagreement with this decision.
Turning to the NRA’s case against New York, the gun rights group alleges that its free speech was infringed upon by Maria Vullo, the former superintendent of the New York state Department of Financial Services. Vullo’s office had been investigating insurance companies that provided coverage to NRA members. The NRA claims Vullo made indirect threats to these companies, pressuring them to stop serving the NRA.
After the tragic school shooting in Parkland, Florida, in 2018, Vullo also encouraged insurance companies and banks to reassess any associations with groups linked to gun rights.
The NRA is appealing a 2022 decision by the 2nd U.S. Circuit Court of Appeals in New York. This court ruled that Vullo’s actions were not illegal. Vullo defended her actions by stating that she was cautioning companies about the “reputational risk” associated with doing business with the NRA.
This case has garnered extra attention because the American Civil Liberties Union (ACLU), known for supporting liberal causes, has chosen to represent the NRA. Despite disagreeing with the NRA’s views, the ACLU has stated it will defend the group’s right to free speech.