John G. Roberts, Jr.: We'll hear argument first this morning in Case 23-411, Murthy versus Missouri.
John G. Roberts, Jr.: Mr. Fletcher.
Brian H. Fletcher: Thank you, Mr. Chief Justice, and may it please the Court: The government may not use coercive threats to suppress speech, but it is entitled to speak for itself by informing, persuading, or criticizing private speakers.
Brian H. Fletcher: Like Bantam Books, this case should be about that fundamental distinction between persuasion and coercion.
Brian H. Fletcher: But, unlike Bantam and the case that you'll hear next, this is not a typical suit where a speaker challenges government actions affecting its own speech. Instead, two states and five individuals are trying to use the Article III courts to audit all of the executive branch's communications with and about social media platforms.
Brian H. Fletcher: That problem has infected every step of this case.
Brian H. Fletcher: Respondents don't have standing at all because they have not shown an imminent threat that the government will cause a platform to moderate their posts in particular.
Brian H. Fletcher: But the lower courts still reviewed a vast range of speech by different officials to different platforms about different topics at different times without asking whether it had anything to do with Respondents.
Brian H. Fletcher: And the courts then entered a universal injunction restricting speech about any content posted on any platform by anyone and binding thousands of officials, including presidential advisors speaking to the public and FBI agents trying to protect the nation from foreign threats.
Brian H. Fletcher: Even apart from the Article III problem, that injunction rests on two fundamental legal errors.
Brian H. Fletcher: First, the Fifth Circuit radically expanded the state action doctrine by holding that even concededly non-coercive communications, like the CDC's public health advice, can transform private platforms' editorial choices into state action. And, second, the Fifth Circuit mistook persuasion for coercion.
Brian H. Fletcher: It held that the FBI's communications are inherently coercive because the FBI is a law enforcement agency, a theory that even Respondents don't defend in this Court, and it held that White House officials engaged in coercion because they used strong language or referred in a general way to legal reforms in response to press questions.
Brian H. Fletcher: If this Court reaches the merits, it should reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.
Brian H. Fletcher: And because no threats happened here, the Court should reverse.
Brian H. Fletcher: I welcome the Court's questions.
Clarence Thomas: Mr. Fletcher, is the coercion/encouragement framework of Bantam Book the only way to look at this case?
Brian H. Fletcher: So I think there are two ways to look at this case.
Brian H. Fletcher: I think one of them is the coercion inquiry, which we think comes from Bantam Books.
Brian H. Fletcher: You can think of that as an aspect of state action because, when private parties are compelled to act, as the Court said in Halleck, they become state actors. We think that's the right way to think about this case. Respondents and the lower courts have also proposed a different way, the state action way.
Brian H. Fletcher: They've suggested that, even absent coercion, the government's speech, if it encourages in some colloquial sense private action, it can turn that private action --
Clarence Thomas: Do we -- do we --
Brian H. Fletcher: -- into state action.
Clarence Thomas: Just to --so I understand your argument, do we normally apply state action doctrine in cases involving the government or private parties?
Brian H. Fletcher: Both, I think.
Brian H. Fletcher: You know, in some state action cases, you're asking -- someone is suing a private party and alleging that that private party is bound by the contours of the First Amendment or other constitutional provisions because they're state actors.
Brian H. Fletcher: You see some suits like that that look like this, suits against the platforms, suits against Stanford University, which is referenced in its amicus brief here.
Brian H. Fletcher: But you also see suits against the government based on conduct by private parties.
Brian H. Fletcher: That was the case in Blum, and that's the theory that Respondents are pursuing here.
Clarence Thomas: Are there any First Amendment cases?
Brian H. Fletcher: Any First Amendment cases? I'm sorry, that are --
Clarence Thomas: Using, employing state action doctrine?
Brian H. Fletcher: Off the -- and suing the government? Off the top of my head, I can't think of one.
Brian H. Fletcher: And I --
Clarence Thomas: So they're usually things like Medicare or government contracts or relationships like that?
Brian H. Fletcher: Yeah, and I think what that gets at is that it's very unusual, and we don't think it's possible for the government, through speech alone, to transform private speakers into state actors.
Brian H. Fletcher: We think these cases usually are and ought to be viewed through the Bantam Books -type framework, where there's a problem if the government is engaged in coercion, but if it stays on the persuasion side of the line and all we're talking about is government speech, then there's no state action and there's also no First Amendment --
Clarence Thomas: So --
Brian H. Fletcher: -- problem.
Clarence Thomas: -- one final question.
Clarence Thomas: Yo u continue to refer back to -- refer to government speech.
Clarence Thomas: Just for my edification, what's the constitutional basis for -- for government speech?
Brian H. Fletcher: Yeah.
Brian H. Fletcher: S o the Court has said, I think, that the government is entitled to speak for itself.
Brian H. Fletcher: It's not a right that comes from the First Amendment.
Brian H. Fletcher: It's a feature of our constitutional democracy.
Brian H. Fletcher: As the Court has said, the government couldn't function if it couldn't express points of view.
Brian H. Fletcher: In Walker, the Court explained, for example, that the government has to be able to run a vaccination campaign at times of public health crisis.
Brian H. Fletcher: I think that's a major part of what was going on here.
Brian H. Fletcher: So the Court hasn't located it in any specific constitutional provision.
Brian H. Fletcher: It's just part of democratic governance.
Sonia Sotomayor: Can you explain to me what exactly is the injunction doing? -- 9 Meaning how is it affecting your speech, the government's speech? There's a lot of defendants.
Brian H. Fletcher: Yeah.
Sonia Sotomayor: There's a lot of agencies.
Sonia Sotomayor: I know that our case law says an injunction just can't tell you to violate the law, and so this injunction might have that problem inherent in it.
Sonia Sotomayor: But the Fifth Circuit injunction is what's before us, correct?
Brian H. Fletcher: Correct.
Sonia Sotomayor: And it says to encourage or significantly -- to coerce -- that's a legal term.
Brian H. Fletcher: Yeah.
Sonia Sotomayor: Or significantly encourage.
Sonia Sotomayor: And you're questioning whether -- what the meaning of "significant encouragement"
Brian H. Fletcher: Yeah.
Sonia Sotomayor: -- is.
Sonia Sotomayor: I'm not sure I know exactly what the Fifth Circuit meant, but we can figure that out.
Sonia Sotomayor: So let's just use to coerce social media companies to remove, delete, suppress, or reduce, including -- through altering their algorithms posted social media content containing protected speech.
Sonia Sotomayor: How is that harming the government? I want some specifics.
Brian H. Fletcher: I'm happy to do that, and I'll say first just to be clear, because this Court has stayed the injunction, fortunately, it's not harming the government now, but there were times when we were getting
Sonia Sotomayor: Well, what are yo u anticipating?
Brian H. Fletcher: Exactly, right.
Brian H. Fletcher: So I think the problem with that -- we don't say that the government can coerce private speakers. That is prohibited by the First Amendment.
Brian H. Fletcher: But the problem with the Fifth Circuit's injunction saying don't coerce or significantly encourage is that it comes at the end of 80 pages of legal analysis holding that the government had done those things by -- for example, when the FBI would send communications to the platforms saying, for your information, it has come to ou r attention that the following URLs or email addresses or other selectors are being used by malign foreign actors like Russian intelligence operatives to spread disinformation on your platforms, do with it what you will.
Brian H. Fletcher: That, the -- the -- the Fifth Circuit held, is coercive because the FBI is a powerful law enforcement agency.
Brian H. Fletcher: And I think, if the injunction were put in place, the FBI would have to think very hard about whether it cou ld continue to do that.
Brian H. Fletcher: Similarly, I think both the Fifth Circuit and my friends have really said that the crux of what they claim was coercion here was what happened in July of 2021 when the Surgeon General, the White House Press Secretary, and the President himself made statements criticizing the platforms' practices on misinformation and false statements about COVID vaccines and calling on them to do better.
Brian H. Fletcher: I think it's really troubling, the idea that those sorts of classic bully pulpit exhortations, public statements urging actors to behave in different ways, might be deemed to violate the First Amendment.
Brian H. Fletcher: And I think, if the injunction were to go into effect and the President or his senior advisors -- the President isn't enjoined, but if his senior advisors, the press secretary or someone else, wanted to talk to the public about other problems, like the circulation of anti-Semitic or Islamophobic content on the social media platforms or the effects they might be having on children's mental health or national security issues, like the anti-Semitic Osama Bin Laden letter that was trending on TikTok at the end of last year that we reference towards the end of our brief, I think all of those things could be done only under the shadow of the injunction.
Brian H. Fletcher: And that comes around to the other point that you made, which is that this injunction, especially read in light of the opinion comes before --that becomes before it, is extremely vague.
Brian H. Fletcher: And I think having tha t sort of vague injunction with these contestable legal terms that have been interpreted very broadly as applied to past conduct hanging over the heads of all of these government officials doing all of these things is a real problem and I think especially so when you're talking about entering such an injunction at the behest of two states and five individual social media users whose main complaints are about the moderation of posts about COVID-19 many years ago that they haven't really even shown were traceable to the government to begin with, we think.
Brian H. Fletcher: And we certainly don't think that they have shown that they face the sor t of imminent threat of future injury that's required to satisfy Article III.
Samuel A. Alito, Jr.: Mr. Fletcher, let me follow up on that.
Samuel A. Alito, Jr.: If even one of the plaintiffs has standing, then we're required to get to the merits.
Samuel A. Alito, Jr.: So let me ask you about Ms. Hines, and as you just mentioned, she must have faced an imminent threat of future injury at the time when the complaint was filed, and that injury must be traceable to the actions of the government.
Samuel A. Alito, Jr.: So, in the first part of that, imminent threat of future injury, her Facebook personal account was restricted at the time when the complaint was filed.
Samuel A. Alito, Jr.: So why isn't that sufficient to show a threat of -- an imminent threat of future injury?
Brian H. Fletcher: We're not disputing that when the private platforms moderated the plaintiffs' pages or their posts, that's an injury in some sense.
Brian H. Fletcher: We haven't disputed that they suffered that injury.
Brian H. Fletcher: We've disputed the traceability question --
Samuel A. Alito, Jr.: Okay.
Samuel A. Alito, Jr.: Fine.
Brian H. Fletcher: -- and then the redressability question.
Samuel A. Alito, Jr.: Okay.
Samuel A. Alito, Jr.: Right.
Samuel A. Alito, Jr.: So, on traceability, traceability is basically a question of causation, right?
Brian H. Fletcher: Agreed.
Samuel A. Alito, Jr.: All right.
Samuel A. Alito, Jr.: Both -- the district court found that the injury was traceable to the government's actions, and the -- the Fifth Circuit accepted that finding, reviewed it and accepted it.
Samuel A. Alito, Jr.: So that's two lower courts.
Samuel A. Alito, Jr.: We don't usually reverse findings of fact that have been endorsed by two lower courts.
Samuel A. Alito, Jr.: And you haven't attempted to show that it was clear -- that that finding is clearly erroneous.
Brian H. Fletcher: So, respectfully, Justice Alito, I disagree with that.
Brian H. Fletcher: I think that the Fifth Circuit and the district court applied too loose a notion of traceability. They didn't try to say this post or any post or any action against Ms. Hines was traceable to any action by the government.
Brian H. Fletcher: They did what the red brief calls a bird's eye view of traceability.
Brian H. Fletcher: They said the government is talking to the platforms a lot.
Brian H. Fletcher: The platforms are doing moderation, and so we'll just assume that all of that moderation is traceable to the government.
Samuel A. Alito, Jr.: Well, do you think that it's necessary to identify a single government action and then trace it to a single consequence? Do you think that's required?
Brian H. Fletcher: No, but I think you have to trace some government action to some consequence that befell you.
Brian H. Fletcher: Maybe I just could be specific about this because we challenge this in our opening brief, and the red brief comes back at pages 19 to 21 and offers up what I take to be their best examples of traceable harm, and I invite you to go look at the pages of the record that they're citing because often what you find is that they're citing moderation of their content that happened either before the challenged government actions to which they're referring or long after.
Samuel A. Alito, Jr.: All right.
Samuel A. Alito, Jr.: I --I have looked at that.
Samuel A. Alito, Jr.: On the issue of causation, under Mt. Healthy, are they required to show anything more than the government's action was a motivating factor?
Brian H. Fletcher: I don't know the answer to that in all cases, and I'm -- I'm reluctant to make sort of broad statements about what the traceability requirement demands in different circumstances.
Brian H. Fletcher: I will say here we're not disputing that.
Brian H. Fletcher: We're saying that they haven't shown any causal connection between the --
Samuel A. Alito, Jr.: It has no effect whatsoever?
Brian H. Fletcher: Right.
Brian H. Fletcher: And -- and the reason --
Samuel A. Alito, Jr.: Both the lower courts were wrong on that?
Brian H. Fletcher: I -- I think they were because, again, they did this blunderbuss approach where they said the government is talking to the platforms about moderation and the platforms are moderating content.
Brian H. Fletcher: But the platforms were moderating this content long before the government was talking to them.
Brian H. Fletcher: They had powerful business incentives to do the same thing.
Brian H. Fletcher: The acts of moderation were consistent with the platforms' own policies, and this is, I think, another telling fact.
Brian H. Fletcher: In those red brief examples that we talked about on pages 19 to 21, some of them involved platforms like LinkedIn that wasn't even the subject of the challenged White House and Solicitor General -- or, excuse me, Surgeon General's office communications with the platforms.
Elena Kagan: Do -- do you think that there are any factual findings with respect to standing that we are required to give clear error review to?
Brian H. Fletcher: I think findings of historical fact, absolutely.
Brian H. Fletcher: We're not fighting that, so the idea that pieces of content were moderated, that the government made certain statements.
Brian H. Fletcher: And if there had been findings that said Facebook deleted this post because of these communications by the government, that would be a factual finding of historical fact, but there just aren't such findings is our --
Elena Kagan: Right.
Elena Kagan: I mean, that's what I was really getting at.
Elena Kagan: Are there findings that you concede, you know, that one, you have to apply clear error review to? That one, you have to do the same?
Brian H. Fletcher: We do.
Brian H. Fletcher: And I -- I can't give you a list because there's a lot of facts in this case, but we agree historical factual findings count.
Brian H. Fletcher: What we say don't count are findings that are really characterizations, which is a lot of what my friends are relying on, findings that are about the application of law to facts, which in this constitutional realm we think get de novo review, and then findings that are premised on erroneous legal standards.
Neil Gorsuch: So -- so, Mr. Fletcher, I --I -- I just want to nail down what your views are on -- on the legal standards.
Neil Gorsuch: On traceability, you're not disputing that a motivating factor is enough.
Brian H. Fletcher: We haven't made that argument here, that's right.
Neil Gorsuch: Okay.
Neil Gorsuch: And then, on redressability, what's your view of the legal standard the Court should be applying?
Brian H. Fletcher: I think, again, it has to be some showing that I think likely to redress the injury is the standard from Lujan, so it doesn't have to be certain, but you have to make some showing that an injunction against the government will stop the platforms from doing what they want.
Neil Gorsuch: In -- in Massachusetts versus EPA, we said likely to some extent.
Neil Gorsuch: Does that strike you as correct?
Brian H. Fletcher: I -- I --I think, in the context of Mass. versus EPA, maybe where you're talking about a problem of degrees.
Brian H. Fletcher: You know, here, where the concern is are the platforms going to moderate my posts or not and are they going to do it because of the government or not and will an injunction against the government stop Facebook and --
Neil Gorsuch: To some degree.
Neil Gorsuch: Is that an -- an acceptable standard to the government?
Brian H. Fletcher: I -- I guess I --
Neil Gorsuch: I just --I just want to know what my yardstick that I'm supposed to measure these allegations against, and there's not a lot in your brief about it.
Neil Gorsuch: So I take likely from Lujan.
Brian H. Fletcher: Yeah.
Neil Gorsuch: I take to some extent from Massachusetts versus EPA.
Neil Gorsuch: And I take the statement in Larson that it doesn't have to redress every injury.
Brian H. Fletcher: Agreed.
Neil Gorsuch: You agree with all of that?
Brian H. Fletcher: Except that the to some extent I think was there, the state's injury was about rising sea levels, and so "to some extent" means it doesn't have to solve the problem, it has to help it a little bit.
Neil Gorsuch: And do you agree --
Brian H. Fletcher: This is more discrete acts of content moderation.
Neil Gorsuch: But do you agree with that standard, though, that -- that to some extent, if -- if they could show that --that their injury would be remedied to some extent by an injunction, that that would be enough?
Brian H. Fletcher: Correct.
Brian H. Fletcher: So, if they're likely to face moderation on 10 posts and an injunction against the government would make it eight, that's enough.
Neil Gorsuch: Yeah.
Neil Gorsuch: Okay.
Neil Gorsuch: And then just flipping back to traceability, I'm sorry, I forgot to ask, substantial motivating factor obviously means it doesn't have to be a proximate cause.
Brian H. Fletcher: Agreed.
Neil Gorsuch: Okay.
Neil Gorsuch: Thank you.
Samuel A. Alito, Jr.: Mr. Fletcher, when I read all of the emails exchanged between the White House and other federal officials on Facebook in particular but also some of the other platforms, and I see that the White House and federal officials are repeatedly saying that Facebook and the federal government should be partners, we're on the same team, officials are demanding answers, I want an answer, I want it right away, when they're unhappy, they -- they curse them out.
Samuel A. Alito, Jr.: There are regular meetings.
Samuel A. Alito, Jr.: There is constant pestering of -- of Facebook and some of the other platforms and they want to have regular meetings, and they suggest why don't you -- they suggest rules that should be applied and why don't you tell us everything that you're going to do so we can help you and we can look it over.
Samuel A. Alito, Jr.: And I thought: Wow, I cannot imagine federal officials taking that approach to the -- the -- the print media, our representatives over there.
Samuel A. Alito, Jr.: If you --if you did that to -- to them, what do you think the reaction would be? And so I thought: You know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and it's -- to mix my metaphors, and it's got these big clubs available -- available to it, and so it's treating Facebook and these other platforms like they're subordinates.
Samuel A. Alito, Jr.: Would you do that to The -- to The New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?
Brian H. Fletcher: So there's a lot packed in there.
Brian H. Fletcher: I want to give you one very specific answer first and then step back out to the broader context.
Brian H. Fletcher: So specifically you mentioned demanding an answer right away and cursing them out.
Brian H. Fletcher: The only time that happens is in an email that's about the President's own Instagram account.
Brian H. Fletcher: It's not about moderating other people's content.
Samuel A. Alito, Jr.: Okay.
Samuel A. Alito, Jr.: We'll put that aside.
Samuel A. Alito, Jr.: There's all the rest.
Brian H. Fletcher: So --
Samuel A. Alito, Jr.: Constant meetings, constant emails, we want answers.
Brian H. Fletcher: Right.
Samuel A. Alito, Jr.: We're partners, we're on the same team.
Samuel A. Alito, Jr.: Do you think that the print media regards themselves as being on the same team as the federal government, partners with the federal government?
Brian H. Fletcher: So potentially in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic.
Brian H. Fletcher: I really think that piece of context, it doesn't change the First Amendment principles, but it's relevant to how they apply here. And I think it's important to understand that at this time, this was a time when thousands of Americans were still dying every week and there was a hope that getting everyone vaccinated could stop the pandemic.
Brian H. Fletcher: And there was a concern that Americans were getting their news about the vaccine from these platforms, and the platforms were promoting, not just posting --
Samuel A. Alito, Jr.: Well, I -- I --
Brian H. Fletcher: -- but promoting, bad information.
Samuel A. Alito, Jr.: -- I understand all that and I know the objectives were good, but -- but, once again, they were also getting their news from the print media and the broadcast media and cable media, and I just can't imagine the federal government doing that to them.
Samuel A. Alito, Jr.: But maybe I'm naive.
Samuel A. Alito, Jr.: Maybe that goes on behind the scenes.
Samuel A. Alito, Jr.: I don't know.
Samuel A. Alito, Jr.: But I -- I -- it struck me as wow, this is not what I understand the relationship to be.
Samuel A. Alito, Jr.: That's all.
Brian H. Fletcher: Well, but I --I do.
Brian H. Fletcher: I think this is important because I had the same reaction that you do, that these emails loo k unusual.
Brian H. Fletcher: I think the idea that there would be back and forth between the government and the media isn't unusual at all.
Brian H. Fletcher: When the White House Press Secretary on July 16th is asked about this by the press at the time, what she says is, of course, we talk to the platforms just the way we talk to all of you when we have concerns about what you're doing, when we have information that you might find helpful.
Brian H. Fletcher: Now there's an intensity of the back and forth here and there's an anger that I think is unusual, but the context for that I think is that these platforms were saying publicly, we want to help, we think we have a responsibility to give people accurate information and not bad information, and we're doing everything we can to meet that goal.
Brian H. Fletcher: That's where this language of partnership comes from.
Brian H. Fletcher: It's not just from the White House.
Brian H. Fletcher: It's these platforms, which are powerful sophisticated entities, saying we're doing the best we can.
Brian H. Fletcher: And the anger, I think really most of the anger when you read the emails -- and I appreciate that you have because I think you have to look at them in context -- the anger is when the officials think that the platforms are not being transparent about the scope of the problem or aren't giving information that's available.
Samuel A. Alito, Jr.: Let me ask you one -- one more question and -- and then I'll stop at least for now.
Samuel A. Alito, Jr.: You make a big point in both your brief and your reply that states don't have First Amendment rights.
Samuel A. Alito, Jr.: Are you saying that they may have a free speech right, but it comes from someplace else, or they don't have free speech rights? Do you think that the federal government could prohibit a governor or the top -ranking public health official in a state from speaking to the residents?
Brian H. Fletcher: No, I don't think it could.
Brian H. Fletcher: And I want to be clear we're not denying that they have speech rights.
Brian H. Fletcher: We're saying that those things like the federal government's speech rights come from the structure of our Constitution, not from the First Amendment.
Brian H. Fletcher: This is a First Amendment case.
Brian H. Fletcher: And I -- 27 think, really, what's happening here is that these states, which were the motivating factor behind the suit, the only plaintiffs in the initial complaint, are really try ing to represent and to litigate the First Amendment rights of their citizens on their citizens' behalf.
Brian H. Fletcher: We think that's an end run around the limit on parens patriae standing, just like the one the Court rejected in Brackeen.
Samuel A. Alito, Jr.: All right.
Samuel A. Alito, Jr.: Thank you.
Brett M. Kavanaugh: Do you think on the anger point, I guess I had assumed, thought, experienced government press people throughout the federal government who regularly call up the media and -- and berate them.
Brett M. Kavanaugh: Is that -- I mean, is that not --
Brian H. Fletcher: I -- I --I don't want
Brett M. Kavanaugh: -- your understanding? You said the anger here was unusual.
Brett M. Kavanaugh: I guess I wasn't --
Brian H. Fletcher: So that --
Brett M. Kavanaugh: -- wasn't entirely clear on that from my own experience.
Brian H. Fletcher: That's fair. (Laughter.)
Brian H. Fletcher: I guess I don't want to endorse "berate," but I guess I will say I bet this is not the first time that there has been profanity or intemperate language in exchanges between White House or agency communications staff and members of the press.
Samuel A. Alito, Jr.: Well, I -- I don't know whether our public information officer is here today, but maybe she should take a note about this so whenever -- (Laughter.)
Samuel A. Alito, Jr.: -- whenever they write something that we don't like, she can call them up and curse them out and say, why don't you -- you know, why don't we be partners.
Samuel A. Alito, Jr.: We're on the same team.
Samuel A. Alito, Jr.: Why don't you show us what you're going to write beforehand.
Samuel A. Alito, Jr.: We'll edit it for you, make sure it's accurate.
Brian H. Fletcher: So, Justice Alito, this is why I want to be careful here.
Brian H. Fletcher: I'm acknowledging the reality that this happens and that it's -- it may be commonplace.
Brian H. Fletcher: I'm not saying it's a good thing or a great thing or a thing to be celebrated. But, fundamentally, I'm saying the First Amendment isn't a civility code.
Brian H. Fletcher: It is an important protection, it's a critical protection against actual coercion, but I think it's important to police that line, and I think this case, the sort of sprawling audit of all of these communications, shows the danger of allowing parties, especially parties without real direct injuries, to come into court and to challenge these sorts of regular back-and-forths.
Brett M. Kavanaugh: On the --on the partners point, though, that does strike me as unusual.
Brett M. Kavanaugh: I mean, how -- what do you think about that?
Brian H. Fletcher: So that, I think, is traceable to t he unusual feature here of this is not the government where the platforms were saying we don't want to deal with you about this, and the government is calling them up and saying, no, we're partners, let's be partners. You could imagine a situation like that where there might be a problem.
Brian H. Fletcher: You might start to think that that starts to shade into coercion.
Brian H. Fletcher: But, here, it's an open door.
Brian H. Fletcher: The platforms are saying publicly, because they're getting public criticism about this from other people too, from the press, from the World Health Organization, from others, they're saying publicly we want to do our part.
Brian H. Fletcher: We recognize we have a responsibility, that we're a source of information for people, and we want to be a source of good information.
Brian H. Fletcher: And so, when the White House calls and says we have some concerns about this, they say we agree.
Brian H. Fletcher: You know, that's a good point you make over here.
Brian H. Fletcher: We disagree with you over here. We're not going to go this far, but we agree with you.
Neil Gorsuch: Mr.
Neil Gorsuch: --
Ketanji Brown Jackson: And, Mr. Fletcher, whether or not that ultimately becomes a First Amendment violation -- I mean, I appreciate the coercion point, and that's sort of the government's first point with respect to the merits of this.
Ketanji Brown Jackson: But I'm -- I'm interested in your view that the context doesn't "change the First Amendment principles." I mean, I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech but not necessarily a total prohibition when you're talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of -- of a once-in-a-lifetime pandemic. So I'm -- I'm just interested in the govern ment sort of conceding that if there was coercion, then we automatically have a First Amendment violation.
Brian H. Fletcher: So I'm not conceding that that would be the case.
Brian H. Fletcher: I could imagine that in times of pandemic, if there were actual restrictions, maybe those would be justified. But our position here, because we think it's the position consistent with the facts, is that there wasn't any coercion to begin with.
Neil Gorsuch: Mr. Fletcher --
Brian H. Fletcher: Yes, Justice Gorsuch?
Neil Gorsuch: -- on -- on that point, you mentioned coercion -- you mentioned coercion repeatedly in terms of threats.
Neil Gorsuch: Can there also be coercion in your view in terms of inducements?
Brian H. Fletcher: We think there can.
Brian H. Fletcher: I think often a threat or an inducement is sort of the flip side, one or the other.
Brian H. Fletcher: I think, in the next case, you could construe it either way, threat of prosecution, offer of leniency.
Brian H. Fletcher: So we acknowledge that it could be both, but it has to be a threat or an inducement of some concrete government action, not just more government speech.
Neil Gorsuch: And, hypothetically --and I'm not saying this happened here -- but would a threat or an inducement with respect to antitrust actions qualify as coercion?
Brian H. Fletcher: Sure.
Neil Gorsuch: And a threat or an inducement with respect to Section 230 qualify?
Brian H. Fletcher: So I think that one's harder for two reasons.
Brian H. Fletcher: One is that these are executive branch officials who don't have the ability to unilaterally enact 230 reform.
Brian H. Fletcher: I think the question is --
Neil Gorsuch: But they -- they have a power to influence that.
Brian H. Fletcher: Influence that, but the question is would --
Neil Gorsuch: And is that -- would that be enough to say we're going to -- if you don't do X, we are going to change our position on Section 230?
Brian H. Fletcher: So potentially yes as to legislation.
Brian H. Fletcher: 230, if I could just get this out, though --
Neil Gorsuch: Sure.
Brian H. Fletcher: -- I think is different because 230 is about content moderation.
Brian H. Fletcher: It's -- it's -- it's about this very issue.
Brian H. Fletcher: And I think a government official has to be able to say, I support Section 230 reform because I'm concerned about these things, and also, in the meantime, I think platforms should be doing better.
Neil Gorsuch: I understand that, but in terms of advocating for a change of Section 230, that could be coercion in your view?
Brian H. Fletcher: If it were framed as a threat.
Neil Gorsuch: Okay.
Neil Gorsuch: And how --
Brian H. Fletcher: Our position is that wasn't done here.
Neil Gorsuch: And how about -- how about saying you're killing people? Could that be coercion in some circumstances, that if you don't change your moderation policies, you're -- you're responsible for killing people?
Brian H. Fletcher: So I think that one is much harder.
Brian H. Fletcher: That's a statement that President Biden made off the cuff to the press.
Neil Gorsuch: I'm not --I'm not -- listen, I'm not talking about the context-specific issues, and I understand you have arguments there, but could that in some circumstances, an accusation by a government that unless you change your policies, you're responsible for killing people, could that be coercion?
Brian H. Fletcher: So I find it hard to imagine a situation where that sort of public statement could be.
Brian H. Fletcher: I'll acknowledge, as you say, context matters a ton, and so I don't want to say it's impossible.
Brian H. Fletcher: All I'm saying is it didn't happen here.
Brian H. Fletcher: The President said this to the public in the middle of a pandemic, and then three days later -- I think this is important -- he clarified.
Brian H. Fletcher: He said, I'm not saying Facebook is killing people.
Brian H. Fletcher: I'm saying the people spreading misinformation are.
Brian H. Fletcher: And when he was asked will you hold the platforms accountable, he was explicitly asked this, will you hold them accountable if they don't do better, he said, I'm not looking to hold anyone accountable.
Brian H. Fletcher: I just want everyone to look in their mirror and imagine -- look in the mirror and imagine what would happen if this misinformation was going to their loved ones.
Brian H. Fletcher: I think it's clear that this was exhortation, not threat.
John G. Roberts, Jr.: Thank you, Mr. Fletcher.
John G. Roberts, Jr.: How are we supposed to evaluate that question in what the --what --the level at which coercion kicks in? I mean, if you're trying to coerce or get a particular result out of a media outlet, is it enough to say, you know, if you don't do this, we're going to move your reporter's cubicle down the hall? Or -- I mean, how do you evaluate when it constitutes coercion in this context?
Brian H. Fletcher: So let me start with I think Bantam Books has been the lodestar for the lower courts that have mostly coalesced, with some errors in application like this case, around the idea of the question is, is it a threat or a statement that a reasonable person would understand, viewed objectively and in context, as an implicit or explicit threat of some adverse government action.
Brian H. Fletcher: Now, as to the cubicles question, I sort of don't know if there are some adverse government actions that are so trivial that they don't count.
Brian H. Fletcher: I guess I think something like that seems less likely to be a coercive threat.
Brian H. Fletcher: But -- but, in general, I think our position is, if there's something that the government is saying that we're going to exercise government power in some way unless you change your speech in some way or stop distributing the speech of others, if it's reasonably understood as that sort of a threat, that's a First Amendment problem.
John G. Roberts, Jr.: Well, but, under Bantam --Bantam Books, it presumably is in context, what you're talking about, a reasonable person.
John G. Roberts, Jr.: I mean, if there is, as a regular basis, the kind of back and forth between a spokesman and -- and a member of the media, what a reasonable person might view as -- as coercive might not in that context, you know -- you know, maybe the press secretary yells on a regular basis, and if their, you know, volume increases enough, that might be viewed as coercion.
Brian H. Fletcher: So I think that points out the context sensitivity.
Brian H. Fletcher: And I think, as is usually the case when the Court says it's a reasonable person test, it's a reasonable person with knowledge of all the facts, and I think that would include the prior course of dealing between the relevant government official and the relevant recipient.
Brian H. Fletcher: I think, here, that really strongly reinforces the idea that there -- there wasn't coercion.
Brian H. Fletcher: These were sophisticated parties. They routinely said no to the government.
Brian H. Fletcher: They were open about it.
Brian H. Fletcher: They didn't hesitate to do it.
Brian H. Fletcher: And when they said no to the government, the government never engaged in any sort of retaliation.
Brian H. Fletcher: Instead, it engaged in more speech.
Brian H. Fletcher: Ultimately, the President and the Press Secretary and the Surgeon General took to the bully pulpit.
Brian H. Fletcher: We just don't think that's coercive.
John G. Roberts, Jr.: Thank you. Justice Thomas?
Clarence Thomas: Mr. Fletcher, back to my point about coercion, couldn't you simply do the --censor someone or prevent other speeches, speech by others, by agreeing with the platforms, as opposed to coercing the platforms?
Brian H. Fletcher: I guess I'm not sure what you mean by "agreeing with the platforms."
Clarence Thomas: Well, you just work together, said: Look, we're right; they're wrong.
Clarence Thomas: Let's work together.
Clarence Thomas: You know, we're on the same team.
Clarence Thomas: Let's work together to make sure that this misinformation doesn't gain sort of any following.
Brian H. Fletcher: So I think, as long as the platforms are exercising their own independent ju dgment, that's what the First Amendment protects.
Brian H. Fletcher: It says we don't want the government messing with --
Clarence Thomas: So you're saying that you can't -- the government can't censor by coordinating with private parties to exclude other speech?
Brian H. Fletcher: I'm saying that when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly.
Brian H. Fletcher: So, for example, you know, recently, after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus.
Brian H. Fletcher: I'm not sure and I doubt that the government could mandate those sorts of changes in enforcement or policy, but public s can call for those changes.
Brian H. Fletcher: The government can encourage parents to monitor their children's cell phone usage or Internet companies to watch out for child pornography on their platforms even if the Fourth Amendment would prevent the government from doing that directly.
Brian H. Fletcher: All of those are contexts where the government can persuade a private party to do something that the private party's lawfully entitled to do, and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop, and the platforms are --
Clarence Thomas: So you -- you really don't see any difference between the government coordinating with the platforms to exclude other speech and persuading the platforms to do this, to not engage or permit other speech?
Brian H. Fletcher: I -- I guess I'm not seeing it.
Brian H. Fletcher: And I think that what happened here was definitely on the -- if you do think there is a difference between those two things, I guess my argument here would be that what happened is on the persuasion side of the line because you do see that back and forth of the platforms throughout the process saying no repeatedly when they disagree with what the government is asking them to do, and I think that that tells you that what was happening here is what the First Amendment protects, which is private speakers making independent judgment informed by, maybe even influenced by, the government but deciding themselves.
Clarence Thomas: So there's no difference between the platforms meeting and working out an arrangement not to permit certain speech and the platforms working with the government to do the exact same thing? There's no difference?
Brian H. Fletcher: Well, I think, if -- if the platforms entered into some agreement amongst themselves, that might raise issues under different provisions of the law, that the -- the modest point I'm making is just that the govern ment doesn't violate the First Amendment when it persuades another -- a speaker to not distribute speech by someone else.
Brian H. Fletcher: That's Penthouse versus Meese, Judge Silberman's opinion there.
Brian H. Fletcher: That's what happens when the White House Press Secretary calls up The New York Times and says that was a bad op-ed, you shouldn't run op-eds like that anymore.
Brian H. Fletcher: I think that's commonplace.
John G. Roberts, Jr.: Justice Alito?
Samuel A. Alito, Jr.: On the traceability causation question, under Mt. Healthy, if the plaintiffs show that the government's actions were a motivating factor, it is not their obligation, isn't this true, to show that they would not -- that the platforms would not have done what they did were it not for what the government did? It would be the defendants' obligation to show that?
Brian H. Fletcher: So I confess, Justice Alito, I'm not sure that the Court has ever gotten through how that -- whether that burden -shifting inquiry applies in the context of traceability as opposed to in a Mt. Healthy merits -type inquiry. I guess what I'd say is the Court has been pretty emphatic that when your injury is attributable to independent choices by private actors, that's not traceable.
Brian H. Fletcher: And our submission is that that's what happened here.
Samuel A. Alito, Jr.: Well, wouldn't it be very strange to have a stricter standard on the merits, a less -- a less defendant-friendly standard on the merits than at the standing stage? It seems -- it seems odd.
Samuel A. Alito, Jr.: Let me get one last question really quickly.
Samuel A. Alito, Jr.: You've never argued that this case is moot?
Brian H. Fletcher: We have not, no.
Samuel A. Alito, Jr.: Thank you.
John G. Roberts, Jr.: Justice Sotomayor?
Sonia Sotomayor: Counsel, you don't do a lot with Clapper, and it seems that Clapper really does change all of the cases in terms of requiring a heightened traceability standard, does it not?
Brian H. Fletcher: So I -- I think Clapper does --is very instructive here.
Brian H. Fletcher: We do cite and rely on it.
Brian H. Fletcher: We think it's relevant to traceability.
Brian H. Fletcher: We think it's perhaps most relevant at the -- sort of the future injury question because I think -- I think we're right about traceability of all of the past moderation of their content that they talk about, but I think we're on even stronger ground in saying that the vast majority of the things they're talking about are about COVID-19 or unusual, idiosyncratic stories from the 2020 election, and their burden is to show that they face an imminent threat -- that's from Lyons, that's from O'Shea -- that the injury is going to recur.
Brian H. Fletcher: That's Clapper II.
Brian H. Fletcher: And what Clapper also says -- and this is instructive -- is that to the extent they're censoring themselves, which is what they say, in the absence of such an imminent threat of actual government -caused harm, that's not enough for --
Sonia Sotomayor: Could you go back to Ms. Hines's 90-day suspension? I'm not sure -- this record is enormous, but do we know exactly what was censored for that 90 days?
Brian H. Fletcher: So that's the problem. I don't think we do or, if we do, I --
Sonia Sotomayor: I was looking for it and couldn't find it.
Brian H. Fletcher: And when I tried to go through the red brief, pages 19 to 21, and connect up the dots here, one of the things that's hard is that there's not a lot of specif ics about even the dates on when things happened.
Brian H. Fletcher: I guess I will say, when the dates are provided, though, they don't line up.
Brian H. Fletcher: The very first example on page 19 of the red brief is, I -- I think it's Ms. Hines, she gets her retweet of Robert F. Kennedy, Junior, suppressed by Twitter and she says, that's an indication that my harms are traceable to the government because the government was talking about Robert F.
Brian H. Fletcher: Kennedy, Junior. But she doesn't say that the government's statements happened between January and July of 2021, and the moderation of her retweet happened in April of 2023, years later, after Twitter had been sold, after it had abandoned the COVID-19 moderation policies that are at issue here.
Brian H. Fletcher: I think that's a strong indication that there's a real traceability problem, and it just gets worse when you look to the forward-looking injury that they have to establish.
Sonia Sotomayor: Thank you.
John G. Roberts, Jr.: Justice Kagan?
Elena Kagan: On the coercion question, is there anything that we have to review on clear error, or is it all legal?
Brian H. Fletcher: I --I'd give you the same answer I gave before.
Brian H. Fletcher: I think historical fact, the statement was made, it was not made.
Brian H. Fletcher: If there were specific factual findings beyond that again of historical facts, we'd acknowledge there clear error, but things like this was pressure, this was coercion, we think those are characterizations.
Brian H. Fletcher: And then the ultimate standard, the ultimate First Amendment standard of was, viewed objectively and in context, this communicating a threat, we think that's either law or maybe more probably law to facts that gets de novo review the way it usually does in the constitutional realm.
Elena Kagan: And on the past harm, future harm question that you were just talking about, I take it, if no future harm, that's independently sufficient, is that right?
Brian H. Fletcher: Correct.
Elena Kagan: And would there be any difficulties with confining a holding to that if we were to find for you?
Brian H. Fletcher: I -- I don't think so at all.
Brian H. Fletcher: I think, in some ways, that's the narrowest, easiest way to resolve this case, is to say this is an action for injunctive relief, they have to show that they faced an imminent threat of future harm.
Brian H. Fletcher: We don't have to adjudicate the parties' disputes about the past harm.
Brian H. Fletcher: We just have to show that they haven't met that burden.
Elena Kagan: Thank you.
John G. Roberts, Jr.: Justice Gorsuch?
Neil Gorsuch: On that question, in your view, when is the time that we should be considering that? Probably not today it seems, right?
Brian H. Fletcher: Correct.
Brian H. Fletcher: Yeah.
Neil Gorsuch: It would be the time that the Court in the first instance issued the PI.
Neil Gorsuch: Is that -- is that your view?
Brian H. Fletcher: So I -- I think it might be even earlier than that just to be candid with that.
Neil Gorsuch: Might be the complaint?
Brian H. Fletcher: Might be the complaint, so the complaint for the states is I think May -- of 2022, the individuals get added in August of 2022.
Brian H. Fletcher: The place where I think I know for sure that the PI matters, though, is whether they've shown a likelihood of irreparable harm which above and beyond standing is a requisite for injunctive relief.
Brian H. Fletcher: I think that has to be shown
Neil Gorsuch: That is at the PI time?
Brian H. Fletcher: -- at the PI.
Brian H. Fletcher: Exactly.
Neil Gorsuch: Okay.
Neil Gorsuch: So that's the relevant date?
Brian H. Fletcher: Yeah.
Neil Gorsuch: Okay.
Neil Gorsuch: And then, when we're looking at coercion, is it in your mind a relevant consideration that the industry is very concentrated and --and that, therefore, coordinati on problems that otherwise might be difficult with the media, which are very diverse, might not be present in some cases?
Brian H. Fletcher: So, again, context matters.
Brian H. Fletcher: And I think, in some ways, the fact that these are very large, very powerful corporations cuts against a finding of coercion because they are very sophisticated, they didn't have any problem, they weren't shy about saying no to the government.
Brian H. Fletcher: I -- I hesitate to say, though, that it suggests that you should change the First Amendment standards.
Brian H. Fletcher: I think the Knight brief is --
Neil Gorsuch: I'm not suggesting that.
Neil Gorsuch: The Knight brief does discuss this and says it might be a relevant factor that there's such a concentration that it makes coordination between government entities and private entities easier.
Brian H. Fletcher: So --but I --
Neil Gorsuch: Do you --do you disagree with that?
Brian H. Fletcher: I -- I --I'm not sure whether or not I agree with that, but I -- I think the -- the point is that for our purposes, the constitutional line is between coercion and not coercion.
Neil Gorsuch: No, I understand that.
Brian H. Fletcher: And so the -- the question --
Neil Gorsuch: But in the context- specific inquiries we've discussed --
Brian H. Fletcher: Right.
Neil Gorsuch: -- you've pointed out one way in which concentration might make it less susceptible to coercion.
Neil Gorsuch: Do we have to account for the possibility as well that in some circumstances -- and I'm not -- again, not case-specific --it might make -- may make coercion easier?
Brian H. Fletcher: So, if that were true, you would have to account for it.
Brian H. Fletcher: The reason I'm resisting is because I think the concerns about concentration in the industry go more to the potential effects of coercion if it happened than about whether or not coercion happ ened at all.
Brian H. Fletcher: I get that.
Brian H. Fletcher: I'm sensitive to that, and the point that I was trying to draw from the Knight brief was the First Amendment isn't the answer to problems of concentration in this industry.
Neil Gorsuch: No.
Neil Gorsuch: I --I -- I take --
Brian H. Fletcher: That's how they're --
Neil Gorsuch: -- I take your point.
Brian H. Fletcher: Yeah.
Neil Gorsuch: Thank you.
John G. Roberts, Jr.: Justice Kavanaugh?
Brett M. Kavanaugh: Just so I understand, your key legal argument is, I think, but correct me if I'm wrong, that coercion does not encompass significant encouragement or entanglement and that it would be a mistake to so conclude because traditional, everyday communications would suddenly be deemed problematic?
Brian H. Fletcher: Exactly right, and -- and, really, that what the lower courts have done here, I think, is to go beyond the coercion test and sort of to openly say we're going to open up this state action encouragement or -- and that, I think, risks turning the platforms and lots of other entities that are interacting with the government into state actors and restricting their editorial choices under the First Amendment.
Brett M. Kavanaugh: And by coercion, you mean threat of legal consequences or do you --
Brian H. Fletcher: Adverse government action.
Brian H. Fletcher: I -- I --
Brett M. Kavanaugh: Adverse government action, okay.
Brett M. Kavanaugh: Then, on the killing people hypothetical or -- not hypothetical -- the statement, I mean, that raises kind of national security analogies.
Brett M. Kavanaugh: I don't know what your experience is or if you've looked into this , but it's probably not uncommon for government s to protest an upcoming story on surveillance or detention policy and say, you know, if you run that, it's going to harm the war effort and put Americans at, you know, risk.
Brian H. Fletcher: I -- I can't profess to have had personal experience with that.
Brian H. Fletcher: I know it has happened.
Brian H. Fletcher: The Knight brief talks about some examples.
Brian H. Fletcher: And I think that's an example of a valuable sort of interchange as long as it stays on the persuasion side of the line.
Brian H. Fletcher: I think plat --- newspapers want to know if their publishing a story might put lives at risk.
Brian H. Fletcher: And they don't have to listen to the government, but that's information that they can consider in exercising their editorial judgment.
Brett M. Kavanaugh: But if they tack onto that: And if you publish the story, we're going to pursue antitrust action against you?
Brian H. Fletcher: A huge problem, yeah.
Brett M. Kavanaugh: Right.
Brett M. Kavanaugh: Okay.
Brett M. Kavanaugh: And then you haven't really described what you think the common interactions are.
Brett M. Kavanaugh: I mean, what -- what --what do you think those are?
Brian H. Fletcher: At issue in th e complaint or looking forward?
Brett M. Kavanaugh: No, just in general.
Brian H. Fletcher: Yeah.
Brett M. Kavanaugh: You're speaking o n behalf of the United States.
Brett M. Kavanaugh: Again, my experience is the United States, in all its manifestations, has regular communications with the media to talk about things they don't like or don't want to see or are complaining about factual inaccuracies.
Brett M. Kavanaugh: I'd be interested in what you want to describe about that.
Brian H. Fletcher: Yeah.
Brian H. Fletcher: So I think that's absolutely right, and I won't profess to give you a comprehensive overview.
Brian H. Fletcher: We've looked at this very carefully in the context of these defendants because we've a couple times been under the shadow of this injunction, and so we wanted to understand exactly what would be at stake there.
Brian H. Fletcher: And so I think it comes into a couple of different buckets.
Brian H. Fletcher: One of them is engagement on mat ters of public policy, and I think that's what was going on here.
Brian H. Fletcher: I think childhood mental health, anti-Semitic speech, Islamophobic speech online are in that category.
Brian H. Fletcher: Those are issues where the White House, the Surgeon General, others, might want to make their views known, to use the bully pulpit to call on the platforms to do more.
Brian H. Fletcher: Another is the national security space.
Brian H. Fletcher: I think the record is clearest there on the FBI providing these foreign malign influence selectors to the platforms for the platforms to take action if appropriate or briefing them on foreign threats or about terrorist activity happening on the platforms.
Brian H. Fletcher: There's also a domestic law enforcement side of things, child exploitation, other things like that.
Brian H. Fletcher: The platforms are a vector for those sorts of activities, and the government communicates with them about that.
Brian H. Fletcher: There's also election integrity issues, false statements about the times, places, or manners of elections, saying, you know, the polls have closed early, don't bother coming to vote, in an effort to suppress people's vote.
Brian H. Fletcher: Or Democrats vote on Wednesday; Republicans vote on Tuesday.
Brian H. Fletcher: Those sorts of schemes are of concern to the law enforcement entities.
Brian H. Fletcher: And then I think there's also the CDC's interactions, which involve providing advice, you know : By the way, we're seeing a lot of this information circulating on your platform.
Brian H. Fletcher: It's not true or it's misleading about something that we've put out.
Brian H. Fletcher: Or even just answering the platform's questions.
Brian H. Fletcher: I think one of the flavors you get from the amicus briefs on our side of the case is there are a lot of valuable ways where the government has information or expertise that it can offer to private speakers, and it would be a shame to chill that.
Brett M. Kavanaugh: Thank you.
John G. Roberts, Jr.: Justice Barrett?
Amy Coney Barrett: So this might be a question about the distinction or the interplay between Bantam Books and just state action more generally.
Amy Coney Barrett: In Justice Thomas's questioning of you, towards the end, he was talking about the distinction between encouragement and coercion.
Amy Coney Barrett: So what if Facebook said -- and this is counterfactual; it's not what happened in this case -- but what if Facebook said, you know what, we're partners, we're on the same team, this is a once -in -a-lifetime pandemic, and we think it would be most efficient and most helpful for the public good for us to just turn over our content moderation to you? That's not coercion.
Amy Coney Barrett: That's voluntary on Facebook's part, but wouldn't it be state action then?
Brian H. Fletcher: So, to me, it starts to veer over, and, obviously, with all the caveats, state action is incredibly context-specific.
Brian H. Fletcher: I don't want to be definitive.
Amy Coney Barrett: Sure.
Brian H. Fletcher: But, to me, that starts to verge more over into the joint action.
Brian H. Fletcher: We're doing something together.
Brian H. Fletcher: The government is doing things.
Brian H. Fletcher: It's actually making decisions. It's not just advising or persuading the platforms.
Brian H. Fletcher: I think the rubric may -- that well be state act action, but the rubric would be I think more sound in the joint action cases than under significant encouragement, which has never been just us trying to persuade you to do something.
Amy Coney Barrett: How do we consider the relationship between those two things? Because I agree with you Bantam Books is about coercion and drawing the line there.
Amy Coney Barrett: But, clearly, there are some times when things veer into the joint action space where we would say that maybe there was state action.
Amy Coney Barrett: And there's a dispute in this case -- it kind of comes up in the next one too -- about which framework is the right one.
Amy Coney Barrett: What advice do you have?
Brian H. Fletcher: Yeah.
Brian H. Fletcher: So, again, I think, if I were the Court, I would want to be cautious about making too definitive pronouncements.
Brian H. Fletcher: I would say that here, what's challenged is the persuasion, exhortation, bully pulpit provision of advice, provision of information, and that when those things are at issue, the main yardstick is going to be Bantam Books.
Brian H. Fletcher: The main concern is going to be have you crossed the line from just really trying to persuade to trying to threaten and that Bantam is the right way to draw that line.
Brian H. Fletcher: I think there are a lot of different amicus briefs from a lot of different parties, like the Chamber and NetChoice, they all agree that's the right line in this context.
Brian H. Fletcher: I think you could reserve and say it would be a very different question if you're talking about the government and the platforms acting together, turning over operational control, integrating their operations.
Brian H. Fletcher: That's a different case and might present hard state action issues, but it's just really not the kind of issue here.
Amy Coney Barrett: And not alleged here?
Brian H. Fletcher: Exactly right, yeah.
Amy Coney Barrett: Okay.
Amy Coney Barrett: My other question is about the findings of fact and clear error.
Amy Coney Barrett: So you were pretty insistent with Justice Kagan that we really, to address the standing point, don't have to review any of the district court's factual findings for clear error.
Amy Coney Barrett: I just want to make sure that that's right because I'm thinking about things you talked about with -- I think it was Justice Alito, the interchange with the expletives, you know, we're getting mad, we want answers now, you know, are you, whatever, serious?
Brian H. Fletcher: Yeah.
Amy Coney Barrett: And that was actually about his own Facebook account.
Amy Coney Barrett: Or there was another change that was -- exchange that was actually about somebody impersonating the President's granddaughter on Twitter.
Brian H. Fletcher: Yeah.
Amy Coney Barrett: So, if the lower courts, which I think they did, kind of conflated some of those threats with threats that were designed to be threats related to the pandemic and that kind of suppression, wouldn't that then be clear error, or do you think that's application of facts to law or what?
Brian H. Fletcher: So I apologize.
Brian H. Fletcher: I didn't mean to say that there -- there's no clear error here at all.
Brian H. Fletcher: I just meant to say it would be findings of historical fact.
Brian H. Fletcher: And I think the ones that you --
Amy Coney Barrett: And those count?
Brian H. Fletcher: And those -- those count.
Brian H. Fletcher: Those do get clear error review.
Brian H. Fletcher: But I think we pointed out places on the -- on the salient ones where they just are clearly erroneous, they're just demonstrably inaccurate, in the two cases that you just identified.
Brian H. Fletcher: So, there, we -- we might agree clear error applies, but to the extent that the lower courts were suggesting, and, really, more the district court than the Fifth Circuit, but a little bit the Fifth Circuit too, that things were said to speakers that weren't said, that the Press Secretary said words she never said, our argument there would just be that those are clear error.
Amy Coney Barrett: So, in considering traceability, you would say that maybe there are some things that we would review for clear error because the erroneous -- assuming that you're right, the erroneous conclusions about traceability depended partly on factual errors and then partly on applications of law to fact?
Brian H. Fletcher: And an incorrect legal standard, yeah.
Amy Coney Barrett: Okay.
Amy Coney Barrett: Thanks.
John G. Roberts, Jr.: Justice Jackson?
Ketanji Brown Jackson: So I guess I didn't perceive there to be such a sharp distinction between Blum and Bantam Books.
Ketanji Brown Jackson: The government seems to be arguing here that Bantam Books is the way to go, that Blum is not the right test.
Ketanji Brown Jackson: And I appreciate that Blum uses significant encouragement, but I think it says the question is whether the government "has provided such significant encouragement, either overt or covert, that the choice must in law be deemed that of the state," that it's sort of suggesting in the same way that Bantam Books is that it's really about coercion, as opposed to just encouragement.
Ketanji Brown Jackson: So am I wrong to think there's really not that much difference between the two?
Brian H. Fletcher: So I don't think you're wrong there.
Brian H. Fletcher: I think we say that that's the way you ought to read the "significant encouragement" language, that it's positive incentives of government action that overwhelm the private party's choice and make it really the government's choice, not the private party's.
Brian H. Fletcher: You can just view that as the flip side of the sort of coercive threats from Bantam Books.
Brian H. Fletcher: I think the reason why you may have sensed me today and us in our briefs resisting Blum is because the lower courts and my friends on the other side have really tried to turn that "significant encouragement" language into something quite different, into circumstances where the government encourages in some colloquial sense by urging or persuading or, you know, really strongly advocating something.
Brian H. Fletcher: And we just don't think that's what Blum means or what this Court's state action cases have ever said.
Ketanji Brown Jackson: Okay.
Ketanji Brown Jackson: I understand that.
Ketanji Brown Jackson: And even if we have a world in which significant encouragement is verboten, is there something different to the government providing information?
Brian H. Fletcher: Yes.
Ketanji Brown Jackson: I mean, I'm a little worried about the Respondents' -- what I think could be t aken away from their view, which is that in situations in which the government has information that may be unique to the government's knowledge but that it feels important for the public to have, that that somehow becomes prohibited if, as a result of that information, these companies decide they're going to do something different with respect to content moderation.
Brian H. Fletcher: That's our big concern too.
Brian H. Fletcher: And that's exactly what the lower courts found crossed the line, the FBI providing information about covert foreign actors on platforms, the CDC providing information or even answering questions about matters of public health.
Brian H. Fletcher: I think it would be very troubling to say that those things are impermissible or create state action.
Ketanji Brown Jackson: Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Aguinaga.
J. Benjamin Aguinaga: Good morning, Mr. Chief Justice, and may it please the Court: Government censorship has no place in our democracy.
J. Benjamin Aguinaga: That is why this 20,000 -page record is stunning.
J. Benjamin Aguinaga: As the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans.
J. Benjamin Aguinaga: The district court, which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.
J. Benjamin Aguinaga: And the government's levers of pressure are anathema to the First Amendment. Behind closed doors, the government badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned, it ominously says that the White House is considering its options, and it accuses platforms both of playing total Calvinball and of hiding the ball, all to get the platforms to censor more speech.
J. Benjamin Aguinaga: Under this onslaught, the platforms routinely cave.
J. Benjamin Aguinaga: Now, last month, in the NetChoice cases, the platforms told you that it's incredibly important that they create their own content moderation policies.
J. Benjamin Aguinaga: But this record shows that they continually depart from those policies because of unrelenting government pressure.
J. Benjamin Aguinaga: Indeed, as Facebook recently disclosed in an internal email to former UK Deputy Prime Minister Nick Clegg, the reason Facebook did that was "because we were under pressure by the administration.
J. Benjamin Aguinaga: We shouldn't have done it." Now my friend says all this is constitutional because the government has the right to persuade using the bully pulpit.
J. Benjamin Aguinaga: But the government has no right to persuade platforms to violate Americans' constitutional rights, and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all.
J. Benjamin Aguinaga: That's just being a bully.
J. Benjamin Aguinaga: I welcome the Court's questions.
Clarence Thomas: Counsel, the -- I know your argument is basically a Bantam Book argument, but do you need coercion in order to -- do you think that's the only way you could make your case, or could coordination accomplish the same thing; that is, the government is censoring by joint actions with the platforms as opposed to coercing the platforms?
J. Benjamin Aguinaga: Your Honor, we don't need coercion as a theory.
J. Benjamin Aguinaga: That's why we led with encouragement in our red brief.
J. Benjamin Aguinaga: And I would point the Court to what it said in Norwood, which is the Court -- or the government cannot induce, encourage, and promote private actors to do directly what the government can't itself do directly.
J. Benjamin Aguinaga: And that's, I think, the principle that's guiding here, which is, regardless of the means that the government tries to use to pressure --to pressure the platforms to commit censorship against third parties, the Constitution really doesn't care about that. It's the fact that what the government is trying to accomplish is the suppression of speech.
J. Benjamin Aguinaga: And I would say, Your Honor, I mean, that's exactly how you addressed this question in Bantam Books.
J. Benjamin Aguinaga: You asked, did the government set out to deliberately suppress speech? The answer in that case was absolutely yes, and that's absolutely the answer in this case here.
J. Benjamin Aguinaga: And I guess, you know, I -- I would say, you know, when this Court considered Bantam Books, one of the key things about the analysis in Bantam Books was that it was an obscenity case, and, you know, the Court struggled with whether the states had the right to police the line between legitimate speech and illegitimate speech.
J. Benjamin Aguinaga: And that was why you were talking about coercion in that case.
J. Benjamin Aguinaga: You were asking whether the states went too far --
Ketanji Brown Jackson: Can I --
Sonia Sotomayor: I --I'm sorry. The reason we were asking about coercion is because the private parties could have chosen on their own to censor that speech.
Sonia Sotomayor: They could have said we think it's obscene, I'm not going to be involved in this.
Sonia Sotomayor: The only issue became when that choice was overridden by the government.
Sonia Sotomayor: And so I --I don't -- I think you're -- you're cite -- you're mixing sort of situations and -- and confusing legal doctrines.
J. Benjamin Aguinaga: No, Your Honor.
J. Benjamin Aguinaga: The fundamental principle -- and this comes from Norwood and it's central to this Court's First Amendment cases, its Fourth Amendment cases -- is that the government can't do indirectly what it's prohibited from doing directly.
J. Benjamin Aguinaga: And that's what you see happening in Bantam Books.
J. Benjamin Aguinaga: That's what you see happening in a case like this because time and again there were times where the social media platforms had policies that didn't go far enough in censoring the speech that the -- that the government wanted them to censor.
Ketanji Brown Jackson: But whether or not the government can do this -- this is something I took up with Mr. Fletcher --depends on the application of our First Amendment jurisprudence, and there may be circumstances in which the government could prohibit certain speech on the Internet or otherwise.
Ketanji Brown Jackson: I mean, do you -- do you --do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest in how the government has tailored its regulation?
J. Benjamin Aguinaga: Certainly, Your Honor. I think, at the end of every First Amendment analysis, you'll have the strict scrutiny framework in which, you know, in some national security hypos, for example, the government may well be able to demonstrate a compelling interest, may well be able to demonstrate narrow tailoring, but the --
Ketanji Brown Jackson: All right.
Ketanji Brown Jackson: So -- so -- so not every situation will -- in which the government engages in conduct that ultimately has some effect on free --on -- on speech necessarily becomes a First Amendment violation, correct?
J. Benjamin Aguinaga: Maybe not necessarily, Your Honor.
J. Benjamin Aguinaga: I guess the top-line question I would ask is, has the government set out to abridge the freedom of speech? And in this case, you see that time and time again because, if you control F --
Ketanji Brown Jackson: But that's not the test for First Amendment violations.
J. Benjamin Aguinaga: Your Honor, this flows from the plain text of the First Amendment, right?
Ketanji Brown Jackson: No, I understand. But we have a -- we have a test for a determination of whether or not the First Amendment is actually violated.
Ketanji Brown Jackson: So, in certain situations, you know, the government can actually require that speech be suppressed if there's a compelling interest, right?
J. Benjamin Aguinaga: It can, Your Honor. And I guess what I would say is that the courts below never got to strict scrutiny because the government never raised this.
J. Benjamin Aguinaga: This has never been litigated.
J. Benjamin Aguinaga: The question in this case is whether at the front end the government itself has undertaken actions --
Ketanji Brown Jackson: It's the coercion, it's the state action, right? That's the question in this case?
J. Benjamin Aguinaga: And I would urge the Court to address the state action issue just like you addressed it in Bantam Books.
J. Benjamin Aguinaga: You used that term four times in Bantam Books.
J. Benjamin Aguinaga: In Footnote --
Elena Kagan: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech.
Elena Kagan: You just wrote a bad editorial.
Elena Kagan: Here are the five reasons you shouldn't write another one.
Elena Kagan: You just wrote a story that's filled with factual errors.
Elena Kagan: Here are the 10 reasons why you shouldn't do that again.
Elena Kagan: I mean, this happens literally thousands of times a day in the federal government.
J. Benjamin Aguinaga: Yeah, and I would say, in the mine-run case that you're describing to me, it's the government going after the speaker itself and trying to get them to change their speech.
J. Benjamin Aguinaga: What's so pernicious here is that you don't see any of these facts in this record unless we get discovery, which is when -- when Rob Flaherty, who's Deputy Assistant to the President, sends an email to Facebook or to Twitter and complains that they're not doing enough to censor what they view as vaccine hesitancy speech.
J. Benjamin Aguinaga: America never sees that.
J. Benjamin Aguinaga: And the third party, people like Jill Hines and -- and Jim Hoft, whose speech wishes to express the kinds of viewpoints that the White House is targeting, they never know that that's happening behind the scenes.
J. Benjamin Aguinaga: And I think it makes a difference, Justice Kagan, that you have an intermediary here who really has no incentive to itself defend Jim Hoft's speech or to defend Jill Hines's speech.
J. Benjamin Aguinaga: In The New York Times's hypothetical, you have a story, a publication that itself is familiar with those kinds of --
Brett M. Kavanaugh: Well, what about op-eds?
Elena Kagan: I mean --
Amy Coney Barrett: Don't you think --
Brett M. Kavanaugh: What about op -eds?
J. Benjamin Aguinaga: Your Honor, with op-eds, you know, if it's third-party speech that --that has that issue --
Brett M. Kavanaugh: That happens too, right?
J. Benjamin Aguinaga: And I guess there are a number of ways I would think about that, Your Honor.
J. Benjamin Aguinaga: One is, if the newspaper declines to run an op-ed because the government asked, that op-ed author can go to any number of other publications and it has an outlet.
J. Benjamin Aguinaga: It's not the same here because, if I'm on Twitter and I wish to express a viewpoint that the government wishes to censor and Twitter bows to that pressure, then --
Elena Kagan: But if one --
J. Benjamin Aguinaga: -- I lose my account.
Elena Kagan: -- if --
J. Benjamin Aguinaga: I --
John G. Roberts, Jr.: I was just going to say, first, I have no experience coercing anybody.
John G. Roberts, Jr.: (Laughter.)
John G. Roberts, Jr.: But -- but, second, I mean, the government is not monolithic either.
John G. Roberts, Jr.: I suspect, when there's pressure put on one of the platforms or certainly one of the other media outlets, they have people they go to, probably in the government, to say: Hey, they're trying to get me to do this, and that person may disagree with what the government's trying to do.
John G. Roberts, Jr.: It's not monolithic.
John G. Roberts, Jr.: And that has to dilute the concept of coercion significantly, doesn't it?
J. Benjamin Aguinaga: Your Honor, I -- I'm not sure I agree with that.
J. Benjamin Aguinaga: And I guess I'd get back to one of the earlier points I made, which is, you know, whether you call this coercion, if that's the label you attach, you call it encouragement, you call it promotion, you call it inducement, whatever it is, if the government is attempting to abridge the speech rights of a third party, that has to be unconstitutional because that falls within the plain text of the First Amendment.
J. Benjamin Aguinaga: And so, you know, this is Bantam Books of the 21st Century.
J. Benjamin Aguinaga: You haven't had a case with social media platforms like this where third-party speech is so at risk of being censored.
John G. Roberts, Jr.: Well, but how do you -- I mean, how do you analyze a situation where, you know, maybe EPA is trying to coerce a platform about something, and the Army Corps of Engineers is trying to coerce them the other way? I mean, you can't just sort of pick and choose which part of the government you're concerned about.
J. Benjamin Aguinaga: Your Honor --
John G. Roberts, Jr.: I mean, obviously, it's different when you're talking about what the president is saying in particular, but other than that, I think it's a very --more a fluid situation than anything else.
J. Benjamin Aguinaga: It is fluid, Your Honor, but I would say that when you have, as we have, plaintiffs in this case who wished to express certain viewpoints that have been specifically targeted by --targeted by the government, you know, it's not at least fluid in these facts.
J. Benjamin Aguinaga: And this is not a case just about COVID.
J. Benjamin Aguinaga: It's a case about election integrity. It's a case the district court has a finding about how the government wishes to --
Elena Kagan: So, I mean, what about that? I mean, you know, take a --an example where -- I mean, these platforms, they're compilers of speech, and some part of the government, let's call it part of the law enforcement arm of the government, says you -- 76 might not realize it, but you are hosting a lot of terrorist speech, which is going to increase the chances that there's going to be some terrible harm that's going to take place, and we want to give you this information, we want to try to persuade you to take it down.
Elena Kagan: Are -- are --the government can't do that?
J. Benjamin Aguinaga: The government can absolutely do that, Justice Kagan.
Elena Kagan: They're taking --
J. Benjamin Aguinaga: Terroris t activity, criminal --
Elena Kagan: -- they're -- they're asking them to take down the speech.
J. Benjamin Aguinaga: Terrorist activity, criminal activity, that is not protected speech. Absolutely, the government can inform the -- the
Elena Kagan: Well, that might -- might be protected speech.
Elena Kagan: I mean, terrorists engage in, you know, things that come under the First Amendment.
Elena Kagan: I mean, let's say they're just recruiting people for their organizations.
J. Benjamin Aguinaga: Your Honor, if it's First Amendment speech, protected speech, then I think we're in an entirely different world.
J. Benjamin Aguinaga: I mean, that's a case where -- and this comes up in the FBI findings that the district court made because what was happening is they were -- the FBI was sending Teleporter encrypted messages to the platforms, identifying what the government represents was foreign actors.
J. Benjamin Aguinaga: The district court found the government was not distinguishing between whether it was domestic or foreign conduct.
J. Benjamin Aguinaga: And the way this issue arises is when maybe you have a foreign actor who tweets, you know, I love Biden, and there are 20 million people who wish to retweet that, repost that, with their own comments, saying, heck, yeah, I love Biden too.
J. Benjamin Aguinaga: When an American does that, that's First Amendment protected speech, Your Honor.
J. Benjamin Aguinaga: And so, when the government comes in and tries to take down every single post that contains the core that they say was foreign speech, but they're also taking down the -- the added speech by Americans, that's a square First Amendment issue, Your Honor.
Elena Kagan: So back in -- this -- this --this still happens now -- decades ago, it happened all the time, which is somebody from the White House got in touch with somebody from The Washington Post and said this will -- this will just harm national security, and The Washington Post said, okay, whatever you say.
Elena Kagan: I mean, that was all -- we didn't know enough, but that was -- that was coercion?
J. Benjamin Aguinaga: Your Honor, I -- I thought I understood the government this morning to say that might be a First Amendment issue. And I think what I would say is, if there's a national security interest, maybe the government can satisfy strict scrutiny in that circumstance.
J. Benjamin Aguinaga: What I would also say is we probably wouldn't have a lawsuit based on that because I don't know how we would get prospective injunctive relie f based on a fleeting offhand, you know, reach-out from the White House to --
Amy Coney Barrett: But that's --
Elena Kagan: I guess what I'm just trying to suggest is that there's all kinds of things that can appear on these platforms that do all kinds of different harms, and -- and the -- 79 inability of government that you're suggesting to -- to reach out to these platforms and say we want to give you information that you might not know about on this, an d we want to give you our perspective on what harms this is doing, and -- and, you know, we want to be able to answer questions that you have because we really do think that it would be a good thing if you on your own chose to take this speech down.
J. Benjamin Aguinaga: And, Your Honor, if those were the facts in this case, then I think it would be a much harder case for me.
J. Benjamin Aguinaga: I think
Elena Kagan: Well, now I don't know what your standard is.
Elena Kagan: You just told me that that was --that was good enough for you.
J. Benjamin Aguinaga: No --
Elena Kagan: That was coercion.
J. Benjamin Aguinaga: No, Your Honor, because, you know, in that circumstance, you have a platform who is reaching out -- or the government reaching out just to --to identify what it views as the right state of the law, right state of facts.
J. Benjamin Aguinaga: The government --I mean this Court has made clear for -- for a while, since its plurality opinion in Alvarez, that if the government thinks there's false speech out there, the remedy for that is true speech. Nothing prohibits the government from going to that platform and saying we've seen a lot of false information about election activity and COVID and vaccines and the like.
J. Benjamin Aguinaga: Nothing prohibits the government from saying here's a list of everything we say is true, that is true in our view, and you should amplify our speech, and anytime that false speech arises, you should put our posts right there next to it saying this is the government's view on this issue.
J. Benjamin Aguinaga: The problem here -- and this is -- you know, I think you see this in the summer of 2021 after the White House goes nuclear on the platforms -- is that the platforms themselves reverse course on their own policies.
J. Benjamin Aguinaga: And you see this in ROA 15322, this is one of the -- in my view, one of the hottest docs in the -- in the JA because you've got this email from Nick Clegg, who is, you know, former Deputy Prime Minister of the UK, and after all of this pressure for months and months and months, he sends this email to Vivek Murthy, the Surgeon General, and he says: Dear Vivek, thanks for taking the time to meet.
J. Benjamin Aguinaga: I wanted to make sure you saw the steps we took past -- this past week to adjust policies on what we're removing to take steps to further address the Disin fo Dozen. We've removed 39 profiles, pages, groups, Instagram accounts.
J. Benjamin Aguinaga: We're continuing to make other accounts harder to find.
J. Benjamin Aguinaga: I mean, this is an example of platforms moving beyond what their own policies required because they felt pressure to take more action and to censor more speech.
J. Benjamin Aguinaga: And, Your Honor, if that's -- I mean, if that's not the clearest example of the government doing --
Amy Coney Barrett: So, counsel --
Sonia Sotomayor: I'm sorry.
Sonia Sotomayor: Tell me where --where you have in the record that - - the 39 accounts that were taken out, that any of them related to any of the Petitioners here.
J. Benjamin Aguinaga: Sure, Your Honor.
J. Benjamin Aguinaga: So what I was quoting --
Sonia Sotomayor: Give me --give me that cite again.
J. Benjamin Aguinaga: What I was quoting to you right now is ROA 15322, and what that email from Nick Clegg mentions is the so-called Disinformation Dozen.
J. Benjamin Aguinaga: This is a group of people that the government thought was responsible for the majority of so-called health misinformation on social media.
J. Benjamin Aguinaga: Now, in paragraphs 5 and 6 of each of the supplemental declarations in the Joint Appendix, each of our individual plaintiffs specifically identifies the fact that they follow members of the so-called Disinformation Dozen, they repost their posts, they engage with their speech.
J. Benjamin Aguinaga: And so, when the government --or when the platforms here, in response to the pressure, are taking down content and accounts related to those individuals called the Disinformation Dozen, that is necessarily impacting our plaintiffs' right to engage with their speech, to add their own comments --
Sonia Sotomayor: Not that they've taken down any of their posts but that they took down someone else's posts? That's what this is saying?
J. Benjamin Aguinaga: That's what I was quoting to you right now, Your Honor, the --
Sonia Sotomayor: That, I'm not sure how that shows traceability or redressability.
J. Benjamin Aguinaga: In the same vein, I think you --
Sonia Sotomayor: And I don't think we've ever dispensed standing on the basis of injury to another, injury to you but not to another.
J. Benjamin Aguinaga: So, Justice Sotomayor, let me give you Jill Hines one more time.
J. Benjamin Aguinaga: Look at JA 7 --793 to 794.
J. Benjamin Aguinaga: This is the tweet that --or it was a screenshot of a tweet that Mr. Fletcher mentioned.
J. Benjamin Aguinaga: And this is censorship four times over because this is a tweet in April 2023.
J. Benjamin Aguinaga: It's on the eve of the preliminary injunction hearing.
J. Benjamin Aguinaga: And what she says is: This Facebook post that I posted was taken down by Facebook.
J. Benjamin Aguinaga: She got a warning for it as a violation of the community standards.
J. Benjamin Aguinaga: What was that post? It was a screenshot of Robert F. Kennedy, Junior, who is a member of the so-called Disinformation Dozen. What was the RFK tweet talking about? It was talking about Tucker Carlson, whom the administration was obsessed with.
J. Benjamin Aguinaga: Look at JA 701 to 708.
Sonia Sotomayor: I'm sorry, the RFK tweet, the -- there's only a record of the White House asking Twitter to remove a tweet on -- and not particularly this one from R -- RFK.
Sonia Sotomayor: That doesn't help Hines's claim that the White House asked Facebook to remove anything.
J. Benjamin Aguinaga: It does, Your Honor, because -- and this is a good example of the interrelationship between the various media platforms -- you have cross-posting.
J. Benjamin Aguinaga: So what happened in this example is Jill Hines took a screenshot of a tweet, and then she moved that over to Facebook and posted that as her own Facebook post.
J. Benjamin Aguinaga: And so, when she did that, she moved RFK's tweet.
J. Benjamin Aguinaga: And I was going to describe what was in that tweet.
J. Benjamin Aguinaga: He was talking about Tucker Carlson, that the White House specifically targeted, in the Joint Appendix, and that --
Sonia Sotomayor: You know, I --I have such a problem with --with your brief, counselor.
Sonia Sotomayor: You omit information that changes the context of some of your claims.
Sonia Sotomayor: You attribute things to people who it didn't happen to.
Sonia Sotomayor: 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 you're -- you have a --I'm not sure how we get to prove direct injury in any way.
J. Benjamin Aguinaga: So, Justice Sotomayor, let me start by apologizing if any aspect of our brief was not as forthcoming as it should have been.
J. Benjamin Aguinaga: I -- I will take full responsibility for that.
J. Benjamin Aguinaga: I apologize for that, Justice Sotomayor.
J. Benjamin Aguinaga: What I would add to the second part of your question is I think Jill Hines is the best standing for case -- for our case in multiple ways.
J. Benjamin Aguinaga: I think one of the ways you look at her standing is you look at JA 715 to 716.
J. Benjamin Aguinaga: This is an email to Facebook where the government, the White House, specifically asks Facebook to not distribute so-called vaccine hesitancy content and also to target health groups that do that. So that's JA 715 to 716.
J. Benjamin Aguinaga: Then you go down earlier in the JA to JA 631 to 632.
J. Benjamin Aguinaga: This is Jill Hines's allegations.
J. Benjamin Aguinaga: And what she says is, two months later -- so the email I described from you -- to you from the White House was in May -- two months later in July and then a couple of months later in September, Jill Hines had two health groups in Louisiana that were blocked by Facebook.
J. Benjamin Aguinaga: And I think this is one of the scariest examples in the record of what is at stake here, which is those groups were political action groups.
J. Benjamin Aguinaga: Louisiana had a legislative session in progress.
J. Benjamin Aguinaga: And what Jill Hines was trying to do is mobilize people to support certain bills and other legislative materials that were then pending in the state legislature.
J. Benjamin Aguinaga: But, because the government moved its pressure, put a thumb on the scales, you know, a couple of months before and then, lo and behold, once Jill Hines tries to use the exact kinds of groups that the government targeted, she can't. They're pulled down.
J. Benjamin Aguinaga: Her political organization is stymied.
J. Benjamin Aguinaga: And that's, you know, all over the record, and that's just one fraction of -- of the kinds of harm that's at stake here.
Amy Coney Barrett: So, counsel --
Elena Kagan: That -- that's your best --
Amy Coney Barrett: -- can I ask you --
Elena Kagan: No, go ahead.
Amy Coney Barrett: I -- I want to go back to actually your interchange with Justice Kagan about the standards because I have to confess it left me very confused.
Amy Coney Barrett: It sounded like you were articulating different standards depending on --a different legal standard depending on different factual circumstances.
Amy Coney Barrett: For example, when Justice Kagan gave you the hypothetical of pressure being placed on The New York Times or The Washington Post not to run a particular op-ed, it seemed like you backed off and said, well, significant encouragement wouldn't be enough there because the person who wrote the op-ed can go to another news outlet.
Amy Coney Barrett: You also made the point that this is just different because social media is such a concentrated industry, which is a point that Justice Gorsuch was asking Mr. Fletcher about.
Amy Coney Barrett: So can you clarify? Did I -- did I misunderstand? Because it seems to me that as a matter of law, the same legal standard would have t o apply across all of these areas.
J. Benjamin Aguinaga: I think that's right, Your Honor.
J. Benjamin Aguinaga: And I apologize if I wasn't clear earlier.
J. Benjamin Aguinaga: I guess the top-line legal standard I would start with was this Court's line at 635 in Norwood, which is the Court can't do indirectly what it's constitutionally prohibited from doing directly.
J. Benjamin Aguinaga: The second line in response to that is, well, what sorts of indirect mechanisms can the government use that would run afoul of that rule? I think one potential mechanism is coercion.
J. Benjamin Aguinaga: Another one is encouragement.
J. Benjamin Aguinaga: This Court also has used the term inducement --
Amy Coney Barrett: Just plain vanilla encouragement, or does it have to be some kind of, like, significant encouragement? Because encouragement would sweep in an awful lot.
J. Benjamin Aguinaga: I think that's right, Your Honor.
J. Benjamin Aguinaga: And so let me give you two answers to that.
J. Benjamin Aguinaga: The top-line answer is, I mean, I'm a First Amendment purist and so I would say even mild encouragement, but we don't need that to win in this case because we are so far afield from whatever that --that threshold is. So, if you want to say substantial encouragement like the Fifth Circuit said and like Blum said, absolutely.
J. Benjamin Aguinaga: That's a standard that works.
J. Benjamin Aguinaga: But I guess what I --I don't --
Amy Coney Barrett: Well, let me just -- let me just ask you then, let me give you a hypothetical.
Amy Coney Barrett: Let's say that you get doxed and so do numerous other members in Louisiana state government.
Amy Coney Barrett: You're doxed, and somebody is posting online about how people should really rally and do something about this.
Amy Coney Barrett: People should rally and you should be harmed, okay? The FBI sees these posts and calls the social media outlet, like X, Facebook, whatever, and says we really encourage you to take these down because these are significantly threatening and we see some people may be responding to them.
Amy Coney Barrett: That's -- that's a problem?
J. Benjamin Aguinaga: So my first question, Your Honor, is whether that would be protected speech, those tweets would be protected speech, Your Honor, unde r this Court's --
Amy Coney Barrett: Okay.
Amy Coney Barrett: Let's just assume -- let's assume that everything that's said, I was trying to make it so that they --
J. Benjamin Aguinaga: Yes, they are.
Amy Coney Barrett: -- stop short of actually being illegal in and of themselves.
J. Benjamin Aguinaga: Your Honor, so I think, you know, as I say, I'm a purist on the First Amendment, so my answer would be yeah, like, that --
Amy Coney Barrett: So the FBI can't make --do you know how often the FBI makes those kinds of calls?
J. Benjamin Aguinaga: And that's why -- and that's why I have my backup answer, Your Honor, which is, if you think there needs to be more, the FBI absolutely can identify certain troubling situations like that for the platforms and let the platforms take action.
J. Benjamin Aguinaga: I think we're -- you know, the hypos are very important, but when you look at what's happening in this case, for example, with respect to the FBI, what they're doing is not -- there's no emergency, nothing of the sort. They're just identifying hundreds of accounts --
Amy Coney Barrett: But that's just kind of falling back on, well, this case is different, this case is different, and so a different legal standard should apply.
Amy Coney Barrett: But, you know, what we say in this case matters for other cases too.
J. Benjamin Aguinaga: It does, Your Honor. And, you know, if that -- I guess what I would say in response to that, and I'm very sensitive obviously given the facts of the hypo to the outcome, but if what the FBI is doing is trying to persuade an intermediary --a speech intermediary to take down a private third party's speech, I mean, that is the -- that is covered by the plain text of Norwood, and that's, I mean, an abridgement of speech.
J. Benjamin Aguinaga: And I -- you know, I --
Ketanji Brown Jackson: So I think -- I think that part of the reason why you might be running into all of these difficulties with respect to the different factual circumstances is because you're not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so.
Ketanji Brown Jackson: And so that's why I keep coming back to the actual underlying First Amendment issue, which we can isolate in this case and just talk about -- about coercion, but I think there -- that you have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it down, tell them to take it down.
Ketanji Brown Jackson: I mean, what about --what about the hypo of someone posting classified information? They say it's my free speech right, I believe that I -- you know, I got access to this information and I want to post it.
Ketanji Brown Jackson: Are you suggesting that the government couldn't say to the platforms, we need to take that down?
J. Benjamin Aguinaga: No, Your Honor, because I think that would be a great example where strict scrutiny would cut in the government's favor.
J. Benjamin Aguinaga: They could show a --
Ketanji Brown Jackson: All right.
Ketanji Brown Jackson: So what do we -- what do we do then in a situation in which -- I mean, I suppose, in this case, we're asking -- the government's point is we didn't coerce.
Ketanji Brown Jackson: And I appreciate, you know, the debate about that.
Ketanji Brown Jackson: But you just seemed to suggest that as a blanket matter, the government doesn't have the ability to, you know, encourage or require this kind of censorship.
Ketanji Brown Jackson: And I don't know that that's the case.
J. Benjamin Aguinaga: So, Your Honor, I guess this goes to the bully pulpit as well as I understand that the bully pulpit has never been used to target the object of suppressing a third party's speech.
J. Benjamin Aguinaga: You can use it to coerce behavior. You can use it to coerce companies to take certain actions.
J. Benjamin Aguinaga: But, when the government is identifying a specific viewpoint and specific content that it wishes to wholly eliminate from public discourse, that's, I think, when the First Amendment problem arises.
J. Benjamin Aguinaga: And so I -- I --I guess -- I'm struggling to find an example in the Court's cases or in history where the Court or anybody else has said: The government, by virtue of being the government, can use its power to pressure speech intermediaries to eliminate entire viewpoints and -- and --and content from the public discourse.
J. Benjamin Aguinaga: And I think, I mean, that's --that's, Your Honor --
Ketanji Brown Jackson: Can I give you a hypothetical?
J. Benjamin Aguinaga: Sure.
Ketanji Brown Jackson: Suppose someone started posting about a new teen challenge that involved teens jumping out of windows at increasing elevations.
Ketanji Brown Jackson: This is the challenge. And kids all over the country start doing this. There's an epidemic.
Ketanji Brown Jackson: Children are seriously injuring or even killing themselves in situations.
Ketanji Brown Jackson: Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?
J. Benjamin Aguinaga: Your Honor, the government absolutely can use the pulpit to say publicly, here's what we r ecognize to be a public health issue, emergency.
J. Benjamin Aguinaga: This is obviously extremely terrible, and the public shouldn't tolerate this.
J. Benjamin Aguinaga: The platforms, we see it's going on on the platforms, you know.
Ketanji Brown Jackson: But they can't call the platforms and say, listen, we really th ink you should be taking this down because look at the problems that it's causing?
J. Benjamin Aguinaga: If it's protected speech, Your Honor, then I think we get closer. But, like, look, if you think that that's -- if that's clearly the way you're asking the question, I -- I understand the instinct that that may --you know, may not be a First Amendment issue.
J. Benjamin Aguinaga: I guess what I'd fall back on, Your Honor, is that at least where the government itself, there is no emergency like this, there's nothing and without --
Ketanji Brown Jackson: No.
Ketanji Brown Jackson: My hypothetical is there is an emergency.
Ketanji Brown Jackson: My hypothetical is that there is an emergency, and I guess I'm asking you, in that circumstance, can the government call the platforms and say: This information that you are putting up on your platform is creating a serious public health emergency, we are encouraging you to take it down?
J. Benjamin Aguinaga: I -- I was with you right until that last comment, Your Honor.
J. Benjamin Aguinaga: I think they absolutely can call and say this is a problem, it's going rampant on your platforms, but the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you're interfering with the third party's speech rights.
John G. Roberts, Jr.: Well, even if you --
J. Benjamin Aguinaga: And, remember, the third --
John G. Roberts, Jr.: Go ahead, finish your --
J. Benjamin Aguinaga: Your Honor, I was just going to say even --remember that the third party here is completely absent from the conversation.
J. Benjamin Aguinaga: The third party whose speech is being targeted and ultimately censored is absent from this discussion.
John G. Roberts, Jr.: Well, you don't think -- well, do you think that simply Justice Jackson's hypothetical ended by saying -- 97 we encourage you to take it down, is that rise to the level of coercion that you think is problematic?
J. Benjamin Aguinaga: Your Honor, if the test is coercion and that's the test that this Court applies, I think I might have a harder case saying that's coercion.
J. Benjamin Aguinaga: I think it's --by its definition, it's maybe easier addressed as a substantial encouragement case.
J. Benjamin Aguinaga: But if --you know, whether --as I said earlier, regardless of the label that you apply, whether it's coercion, whether it's encouragement, or joint participation and conspiracy, at the end of the day, if what the government is trying to do is to eliminate viewpoints from public discourse, that I think
John G. Roberts, Jr.: Well, again, under my colleague's hypothetical, it was not necessarily eliminate viewpoints.
John G. Roberts, Jr.: It was to eliminate instructions, let's say, about how to engage in some game that is seriously harming children around -- around the country, and they say we -- we encourage you to stop that.
John G. Roberts, Jr.: I mean, is it -- that violates the Constitution?
J. Benjamin Aguinaga: Your Honor, I agree, as a policy matter, it might be great for the government to be able to do that, but the moment that the government identifies an entire category of content that it wishes to not be in the modern public sphere, that is a First Amendment problem.
John G. Roberts, Jr.: Thank you, counsel.
John G. Roberts, Jr.: Justice Thomas? Justice Alito?
Samuel A. Alito, Jr.: Well, Mr. Aguinaga, I think some of your most recent colloquy with my colleagues have gotten off into questions that I didn't take it from your brief we -- you think we actually need to decide in this case.
Samuel A. Alito, Jr.: So I thought your principal argument was that whatever coercion means, it -- what happened here is sufficient and that coercion doesn't mean only -- it doesn't apply only when the government says do this, and if you don't do this, there are going to be legal consequences when it says that in the same breath but that it's a more flexible standards and you -- standard and you have to take into account the whole course of the relationship regarding this matter.
Samuel A. Alito, Jr.: That's what I -- I took to be your principal argument.
Samuel A. Alito, Jr.: Did I understand that correctly?
J. Benjamin Aguinaga: That's correct, Your Honor.
J. Benjamin Aguinaga: And there's an entire volume -- I mean, we've got 20,000 pages in this record of the government persistently going back to platforms again and again, pushing them to adjust their policies, change their policies, do more censoring.
J. Benjamin Aguinaga: And I think that's what makes this case so unique, is that you not only have this vast repetition of communications, but it's all -- again, the bulk of it is behind closed doors.
J. Benjamin Aguinaga: And that's what's so pernicious about this, is that if we don't have a remedy in this case, then it's hard to see how there will ever be a remedy for a future plaintiff who turns out to be censored, but it's difficult for that person to even identify whether that censoring actually happened.
Samuel A. Alito, Jr.: And you got all this information only through discovery, is that correct?
J. Benjamin Aguinaga: That's correct, Your Honor.
Samuel A. Alito, Jr.: Thank you.
John G. Roberts, Jr.: Justice Sotomayor? Justice Kagan?
Elena Kagan: Could we go back to the standing question? And --and if I ask you for the single piece of evidence -- and maybe this is the -- the piece that you were describing earlier.
Elena Kagan: I just wanted to make clear what your answer was.
Elena Kagan: The single piece of evidence that most clearly shows that the government was responsible for one of your clients having material taken down, what is that evidence and, you know, what does it say about how the government was responsible?
J. Benjamin Aguinaga: Sure, Your Honor.
J. Benjamin Aguinaga: So, as I say, I think Jill Hines is the best example for us on standing.
J. Benjamin Aguinaga: To give you one more example, look at page --
Elena Kagan: Yeah, but even on that one, I guess I just didn't understand in what you were saying how you drew the link to the government.
Elena Kagan: I mean, we know that there's a lot of government encouragement around here.
Elena Kagan: We also know that there's -- the platforms are actively content moderating, and they're doing that irrespective of what the government wants.
Elena Kagan: So how do you decide that it's government action as opposed to platform action?
J. Benjamin Aguinaga: Your Honor, I think the clearest way --if I understand -- so let me answer your question directly, Your Honor.
J. Benjamin Aguinaga: The way -- the link that I was drawing there was a temporal one.
J. Benjamin Aguinaga: If you look at JA 715 to 716, that's a May 2021 email.
J. Benjamin Aguinaga: Two months later after that email, calls were targeting health groups just like Jill Hines's group.
J. Benjamin Aguinaga: She experiences the first example of that kind of group being --
Elena Kagan: Yeah.
Elena Kagan: So, in two months, I mean, a lot of things can happen in two months.
Elena Kagan: So that decision two months later could have been caused by the government's email, or that government email might have been long since forgotten because, you know, there are a thousand other communications that platform employees have had with each other, that --a thousand other things that platform employees have read in the newspaper.
Elena Kagan: I mean, why would we point to one email two months earlier and say it was that email that made all the difference?
J. Benjamin Aguinaga: Your Honor --and I would say a thousand other emails between the White House and Facebook in those two months.
J. Benjamin Aguinaga: I mean, that's the volume of this interaction, this back and forth, between the platform and the government, and -- and it's all --
Elena Kagan: Yes, but if it's --
J. Benjamin Aguinaga: -- about the same topic.
Elena Kagan: -- but if it's encouragement -- I mean, let's even take that this was something that the -- that the government was continually pressing the -- encouraging the platforms to do.
Elena Kagan: I mean, until you can show that there's something about -- overbearing the platform's will, which, you know, seems sort of hard to overbear Facebook's work --will from what I can gather from the world, but, you know, how do you say it's the -- 103 government rather than Facebook?
J. Benjamin Aguinaga: Your Honor, I guess what I -- what I would say is we're in -- the context in which these -- these communications arise, the Facebook emails are attempting -- they say --they use terms like "partner," they're trying to work with the government.
J. Benjamin Aguinaga: And, you know, like, you could say the same thing about how do you know it's Facebook, not the government, how do you know it's the government, not Facebook? You could ask it either way.
J. Benjamin Aguinaga: I think what we do know --
Elena Kagan: Well, you're exactly right.
J. Benjamin Aguinaga: I think what we do know
Elena Kagan: I mean, you can say that about pretty much everything that's in your brief, that there's just nothing where you can say, okay, the government said take down that communication.
Elena Kagan: The government is making some broad statements about the kinds of communications it thinks harmful.
Elena Kagan: Facebook has a lot of opinions on its own about various kinds of communications it thinks harmful.
Elena Kagan: I guess, if you're going to use standard ideas about traceability and redressability, I guess what I'm suggesting is I don't see a single item in your briefs that would satisfy our normal tests.
J. Benjamin Aguinaga: So, Your Honor, look at Jill Hines, and I'll give you one more example.
J. Benjamin Aguinaga: Look at page 20 of the red brief.
J. Benjamin Aguinaga: This is the Jim Hoft example, because we know that his name and the Gateway Pundit specifically appear in the tracking spreadsheet that CISA uses, that the FBI uses as well.
J. Benjamin Aguinaga: And we also know that the EIP, the Election Integrity Partnership, that works with CISA, and the government --the district court found this a million times.
J. Benjamin Aguinaga: It said that it looks like they have a coordinated effort out to get Jim Hoft.
J. Benjamin Aguinaga: I mean, I think that's our -- our second -best example on direct traceability, Your Honor.
J. Benjamin Aguinaga: So, if you're not satisfied with Jill Hines, look at Jim Hoft, look at page 20 of the red brief.
Elena Kagan: Thank you.
John G. Roberts, Jr.: Justice Gorsuch?
Neil Gorsuch: You --you've spoke n with Justice Kagan about your best examples on traceability.
Neil Gorsuch: How about redressability, given that by the time the PI came around, we're in '23?
J. Benjamin Aguinaga: Your Honor, so we had two second supplemental declarations that are at the end of the Joint Appendix that are from Jim Hoft and from Jill Hines that identify the specific posts that they had posted on Twitter and Facebook during the pending preliminary injunction proceedings.
J. Benjamin Aguinaga: One of the ones we talked about was JA -- 793 and 794, which is the -- the Jill Hines Facebook post referencing RFK, referencing Tucker Carlson, referencing vaccines.
J. Benjamin Aguinaga: It's -- it's turtles all the way down.
J. Benjamin Aguinaga: And that is an example, and all of these are examples, of injuries that postdate lot of the earlier filings in this case.
J. Benjamin Aguinaga: And so, you know, when you talk about redressability, Your Honor, this injunction is an order to the government not to continue engaging in the sorts of censorship that led to these kinds of censorship decisions.
Neil Gorsuch: Then I'd like to talk just briefly about remedy.
Neil Gorsuch: This is another example of a universal injunction, and the district court enjoined behavior by platforms that your clients didn't use and enjoined actions with respect to non-parties, not affecting your clients.
Neil Gorsuch: We've seen an epidemic of these lately.
Neil Gorsuch: What do we do about it?
J. Benjamin Aguinaga: So a couple of responses to that, Justice Gorsuch.
J. Benjamin Aguinaga: I think one reason the breadth of the injunction is what it is is what the Fifth Circuit explained in JA 81 to 83, which is the breadth of the government's enterprise in this case w as extremely broad. I mean, when it's identifying -- and I had this colloquy with Justice Kagan about whether you can identify them calling out Jill Hines specifically.
J. Benjamin Aguinaga: The reason it's hard for me to do that is because they weren't cutting at that --at that level in the weeds.
J. Benjamin Aguinaga: What they were taking is broader strokes like vaccines are safe for --for children, calling that claim -- true, and then having the platforms go out and censor contrary claims.
J. Benjamin Aguinaga: And so the reason you see the breadth of the injunction being the way it is, Your Honor, it's a product of what the government did.
J. Benjamin Aguinaga: Now, if you --
Neil Gorsuch: No, that's --
J. Benjamin Aguinaga: -- if you have concern
Neil Gorsuch: -- we hear that in every universal injunction case.
Neil Gorsuch: But your clients are your clients.
Neil Gorsuch: They're the only ones complaining.
Neil Gorsuch: And it's their case.
Neil Gorsuch: It's their controversy.
Neil Gorsuch: And, normally, our remedies are tailored to those who are actually comp laining before us and not to those who aren't, right?
J. Benjamin Aguinaga: Your Honor, and if you have that concern, we're completely fine if you want to limit the injunction t o the five platforms as to which we were able to get preliminary discovery.
J. Benjamin Aguinaga: That's completely fine with us.
J. Benjamin Aguinaga: If you want to limit just to the seven plaintiffs, also completely fine, Your Honor.
J. Benjamin Aguinaga: I think the most important takeaway in this case is that the Court has to say something in our favor on the merits.
J. Benjamin Aguinaga: The government can't just run rampant pressuring the platforms to censor private speech.
Neil Gorsuch: Thank you.
John G. Roberts, Jr.: Justice Kavanaugh?
Brett M. Kavanaugh: On Bantam Books, I read that to refer to coercion and not to significant encouragement.
J. Benjamin Aguinaga: I think that's right, Your Honor, although, if you look at page 66 to 67, this Court used the term "coercion" alongside the term "persuasion" and "intimidation." I mean, I think there is some flexibility in those terms, and you could -- you can imagine a world in which you can call persuasion another variety of encouragement . As I say, I'm not wedded to any label, we're not wedded to any label, but I do agree that the word "encouragement" doesn't appear in Bantam Books, Your Honor.
Brett M. Kavanaugh: And one thing that I think I want to square up with you is if someone calls and -- or contacts the social media company and says what you have there, this post, has factually erroneous information, so not a viewpoint that we disagree with, factually erroneous information, and the social media company says, we'll take a look at that and -- and -- you still think that's significant encouragement that qualifies as coercion, if they take it down in response to concluding that it, in fact, is factually erroneous?
J. Benjamin Aguinaga: No, Your Honor.
J. Benjamin Aguinaga: If there's no ask from the government, if the government's just saying here's our view of the statement --
Brett M. Kavanaugh: Okay.
Brett M. Kavanaugh: And we think it should be -- it should be taken down, it's up to you, but we think it should be taken down.
J. Benjamin Aguinaga: Yeah, I think that's a harder case for me.
J. Benjamin Aguinaga: I guess, you know, if you think it's a close case, decide it in favor of the First Amen dment.
Brett M. Kavanaugh: What -- What -- what's -- oh, that's --that's the question here.
Brett M. Kavanaugh: You can't -- you can't just claim the mantle.
Brett M. Kavanaugh: Yeah.
Brett M. Kavanaugh: What --what do you think the -- when you say it's a "harder case," why do you think it's a harder case?
J. Benjamin Aguinaga: Because I understand the instinct, Your Honor, that just asking very, very politely or just saying very, very politely we think you should take it down, that that shouldn't be a First Amendment problem, but the reality is that when somebody like the FBI or somebody like a deputy assistant to the president makes a statement like that, that statement carries force.
J. Benjamin Aguinaga: That's just the reality.
J. Benjamin Aguinaga: My dear mother is a saint and if she makes a state -- same statement to Twitter, they're --they don't know her from Adam, they don't care, but they do care if it's the government.
Brett M. Kavanaugh: And -- and why is that? Is it your assumption that anyone in those circumstances is always implicitly threaded --threatening adverse consequences?
J. Benjamin Aguinaga: No, Your Honor, and this is where Bantam Books, I think, is good for us because it says you look through the form to the substance.
J. Benjamin Aguinaga: And so you look at the substance of the communication and say, well, is what the government doing here, is it trying to effectively suppress a third-party's speech? And so, if the forms cut one way, but the substance cuts the other ways, then you look at the substance.
Brett M. Kavanaugh: The hypo was about factually inaccurate.
J. Benjamin Aguinaga: Right, factual -- factually inaccurate information.
J. Benjamin Aguinaga: And if the government says our view of that is that it's false, they can absolutely say that.
J. Benjamin Aguinaga: But, if they do more and they say you need to take this down --
Brett M. Kavanaugh: You should take it down?
J. Benjamin Aguinaga: -- you should take it down --
Brett M. Kavanaugh: That's a problem?
J. Benjamin Aguinaga: -- First Amendment issue, Your Honor.
J. Benjamin Aguinaga: I mean, I think that --
Brett M. Kavanaugh: Factually inaccurate about --
J. Benjamin Aguinaga: Is that --
Brett M. Kavanaugh: -- something the troops are doing, U.S. troops are doing, and, you know, you should take that down, it's factually inaccurate, it's harming the war effort, it's not accurate, and you're just running post aft er post describing what's going on in an inaccurate way, and it's up to you, but why -- why -- why should you be publishing that inaccurate information?
J. Benjamin Aguinaga: Yeah, and the north star for the government in that situation is more speech.
J. Benjamin Aguinaga: Publish the true speech that they think should counter what they view as fals e speech.
J. Benjamin Aguinaga: The government is not helpless here. It has tools at its disposal, and censorship has never been the default remedy for a perceived First Amendment violation.
Brett M. Kavanaugh: What do you do with the fact that the platforms say no all the time to the government?
J. Benjamin Aguinaga: Your Honor, it doesn't matter.
J. Benjamin Aguinaga: I think Judge Posner made this -- this point in Backpage versus Dart, which is you could have a threatener who threatens the recipient, the recipient says no, and so the threatener packs their tent and walks away. That's still a First Amendment violation even though the recipient refused to comply.
Brett M. Kavanaugh: Thank you.
John G. Roberts, Jr.: Justice -- Justice Barrett?
Amy Coney Barrett: Just picking up on Justice Ka vanaugh's question about what makes something threatening and is it just something inherent in the nature of a person, the person on the other end of the line being a government , so Bantam Books points out that the speech, the threat, the encouragement, if that's, you know, what we can posit for this purpose, comes from someone with the authority to impose a sanction.
Amy Coney Barrett: Is that important in your view?
J. Benjamin Aguinaga: Your Honor, it -- I mean, it is and it isn't.
J. Benjamin Aguinaga: We think it's a relevant fact that if somebody like an FBI agent that is meeting regularly with the platforms is making these kinds of requests, that that's a fact that you have to take into consideration.
J. Benjamin Aguinaga: Justice Sotomayor has a panel, a procuring panel decision called Okwedy versus Molinari in the Second Circuit that addressed this issue about authority, and the issue in that case was that the borough president of Staten Island didn't have authority to take down a particular billboard, but the court still said that the fact that the recipient thought that the borough president might be able to use whatever authority he did have to cause trouble for the billboard owner, that was enough.
J. Benjamin Aguinaga: So, if --if -- if the speaker has that kind of authority, Your Honor, I think that's a critical fact that you have to take into account because, as I say, if it's somebody that Twitter doesn't know from Adam that's making the request, they're just going to ignore it.
J. Benjamin Aguinaga: But if it's somebody --
Amy Coney Barrett: Well, I mean, if it's a staff or even if it's somebody on the Hill, I mean, you know, people who work on the Hill don't have control over DOJ, or if it's a staffer in the White House, you know, mentioning 230 or maybe that's what's in the platform's mind, but, you know, no authority to bring an antitrust suit or to try to change 230 or advocate for 230 changes, that doesn't matter?
J. Benjamin Aguinaga: Your Honor, I mean, what I would say is, on the facts of this case, if you have the Deputy Assistant to the President making that kind of statement, sure --
Amy Coney Barrett: No, no, no.
J. Benjamin Aguinaga: -- he can't -- he can't make that -- he can't change --
Amy Coney Barrett: Let's say it's low level, not Deputy Assistant to the President. Let's just call it somebody, a low-level staffer.
J. Benjamin Aguinaga: Two people -- two people below him, two people below him, he -- they can't unilaterally reform 230 or promulgate rulemakings, but they can engage in a process that itself is punishment basically.
J. Benjamin Aguinaga: I mean, imagine being on the receiving ends of Rob Flaherty for six months on end and these -- receiving these kinds of emails.
J. Benjamin Aguinaga: In some ways, it's the adverse consequences that were threatened and/or actually carried out.
J. Benjamin Aguinaga: Was the process --
Amy Coney Barrett: So we should focus less on authority or authority can kind of drop out.
Amy Coney Barrett: The point is, if it comes from the government, and so there might be some conceivable way in which the government could follow through in some sort of punitive way, that --that's the relevant inquiry?
J. Benjamin Aguinaga: Your Honor, I think that is certainly one way you can look at the analysis, absolutely.
Amy Coney Barrett: Okay.
Amy Coney Barrett: Thanks.
John G. Roberts, Jr.: Justice Jackson?
Ketanji Brown Jackson: So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.
Ketanji Brown Jackson: I mean, what would --what would you have the government do? I've heard you say a couple times that the government can post its own speech.
Ketanji Brown Jackson: But, in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done.
Ketanji Brown Jackson: And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So can you help me? Because I'm really -- I'm really worried about that because you've got the First Amendment operating in an environment of threatening circumstances fr om the government's perspective, and you're saying that the government can't interact with the source of those problems.
J. Benjamin Aguinaga: And, Your Honor, I understand that instinct, and I guess what I'd tell you is our position is not that the government can't interact with the platforms there.
J. Benjamin Aguinaga: They can and they should in certain circumstances like that that present such dangerous issues for society and especially young people.
J. Benjamin Aguinaga: But the way they do that has to be in compliance with the First Amendment, and I think that means they can give them all the true information that the platform needs and ask to amplify that and ask --
Ketanji Brown Jackson: Right.
Ketanji Brown Jackson: But you're just --you're just saying that.
Ketanji Brown Jackson: I guess I thought when you say the way they do that is consistent with the First Amendment is that they have to show that they have a compelling interest to do what they're doing.
Ketanji Brown Jackson: In other words, you -- you want us to take the line --
J. Benjamin Aguinaga: I see.
Ketanji Brown Jackson: -- to be between compulsion and encouragement, and what we're looking at is the government can't compel, maybe they can encourage.
Ketanji Brown Jackson: I'm wondering whether that's not really the line.
Ketanji Brown Jackson: The line is does the government, pursuant to the First Amendment, have a compelling interest in doing things that result in restricting the speech in this way? That test, I think, takes into account all of these different circumstances, that we don't really care as much about how much the government is compelling or maybe we do but in the context of tailoring and not as sort of a freestanding inquiry that's overlaid on all of this.
Ketanji Brown Jackson: Does that make sense?
J. Benjamin Aguinaga: It does, Your Honor. And I -- I apologize for missing your guidance earlier.
J. Benjamin Aguinaga: So the way I think about that is I -- I've been discussing the standard and I thought we've all been discussing the standard on the front end of the analysis, which is, is there a First Amendment violation? Is there an abridgement of speech? I guess I would conceptually think of strict scrutiny, narrow tailoring, compelling interest as coming in at the back end to say yes, maybe in the ordinary case, the government shouldn't have been permitted to undertake the kind of suppression of free speech that it did, but in this unique circumstance, it actually had a compelling interest, and it used narrowly tailored means to accomplish that issue.
J. Benjamin Aguinaga: I mean, I think that's the fa il-safe. If you're concerned with the breadth of our arguments, that's one fail -safe, which is no matter how broad the standard the Court adopts, there's always going to be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things that you're outlining.
Ketanji Brown Jackson: Thank you.
John G. Roberts, Jr.: Thank you, counsel.
John G. Roberts, Jr.: Rebuttal, Mr. Fletcher.
Brian H. Fletcher: Thank you, Mr. Chief Justice.
Brian H. Fletcher: I'd like to start with a few points on standing and then address the merits and then try to step back and talk about the bigger picture.
Brian H. Fletcher: So, first, on standing, I have to start with a clarification about Jill Hines's emails at pages 793 to 794 of the Joint Appendix.
Brian H. Fletcher: I had misunderstood the cross-posting issue that my friend alluded to earlier.
Brian H. Fletcher: I thought that was a moderation event by Twitter, not by Facebook.
Brian H. Fletcher: I appreciate his clarification, and because we've been insistent on the lower court's turning square corners on the facts here, I wanted to make sure I did that too.
Brian H. Fletcher: I don't think that changes the fundamental point, though, because we're still talking about an act of moderation in April 2023, years after the last White House or any government speech targeting Mr. Kennedy's content, which happened back in 2021.
Brian H. Fletcher: And that, Justice Kagan, I think points out the problem that you highlighted, which is that they're trying to draw the connection between the government's acts here and the moderation that harmed them through timing, and the timing just isn't very good. And so I want to talk about the two best examples that he gave you, the one being Ms. Hines's groups on Facebook, and this is discussed at page 630 of the Joint Appendix.
Brian H. Fletcher: Justice Kagan, you pointed out that her groups were moderated at least two and four months after the relevant exchange between Facebook and the government.
Brian H. Fletcher: But it's actually worse than that.
Brian H. Fletcher: The 2000 -- the May 2021 email from Facebook to the government says, we've already taken action on health groups to remove them from our recommendation feature.
Brian H. Fletcher: It wasn't reporting on something it would do in the future.
Brian H. Fletcher: It was reporting on something that was already done.
Brian H. Fletcher: And it's even not clear from the email that Facebook was doing that because of any request from the government.
Brian H. Fletcher: It was a report of its own action.
Brian H. Fletcher: And then his next best example is Mr. Hoft and the appearance of Mr. Hoft on a spreadsheet that the Department of Homeland Security's CISA, a sub -agency, maintains.
Brian H. Fletcher: This appears at Record on Appeal 17,016.
Brian H. Fletcher: And the problem with that is twofold.
Brian H. Fletcher: First, this is a tracking spreadsheet that monitors information sent from election officials to the platforms. This shows that the report was made by the Election Integrity Partnership, a private entity.
Brian H. Fletcher: It wasn't a referral that was made by CISA, the federal agency.
Brian H. Fletcher: CISA was just noting the existence of the referral.
Brian H. Fletcher: And, second, as far as I'm aware, there's no indication in the record that the referenced piece of content was actually taken down at all.
Brian H. Fletcher: So I think that points up that what they just haven't shown is any injury traceable to the government, let alone an imminent risk of future injury.
Brian H. Fletcher: Second, on the merits, I think it's instructive to start with what my friend called one of the hottest documents.
Brian H. Fletcher: This is Record on Appeal 15,322, the email exchange between Surgeon General Murthy and someone at Facebook because this is coming in that critical July 2021 period, and what starts that email exchange is not any concern about the private email exchanges, the stuff that happened behind closed doors, antitrust reform, Section 230.
Brian H. Fletcher: It's Facebook reaching out and saying we wanted to get in touch because of the President's statements about us, the reference to killing people, and because of the Surgeon General's health advisory on what platforms could be doing to be doing more along with others in society.
Brian H. Fletcher: And I think what that highlights is that to the extent that the government had influence on the platforms here, and we acknowledge there are indications that it did, it's influence of the classic bully pulpit sort of President Reagan condemning pornography -- or, excuse me, President Bush condemning pornography, President Reagan condemning media about drugs and violence, Teddy Roosevelt condemning muckrakers.
Brian H. Fletcher: Part of our constitutional tradition is that presidents and their close advisors have the ability, the authority to, in a non -coercive way, to speak their mind and call on the public to act.
Brian H. Fletcher: And we think that's what was happening here.
Brian H. Fletcher: And, finally, if I could just step back and --you know, my friend started by saying that this is a massive attack on free speech.
Brian H. Fletcher: The lower courts called it a coordinated censorship campaign.
Brian H. Fletcher: I want to be clear, if those things had happened, they would be reprehensible.
Brian H. Fletcher: It would be a huge problem.
Brian H. Fletcher: But we would think that before validating those sorts of charges against senior government s and career employees spanning two different administrations, the lower courts would insist on a rigorous analysis of the facts and the law.
Brian H. Fletcher: And with all respect to the lower courts, we don't think that's happened here.
Brian H. Fletcher: We don't think that's supported.
Brian H. Fletcher: We think the easiest way for this Court to resolve this case is on standing, on the for --lack of forward -looking injury ground, Justice Kagan, that you and I discussed earlier.
Brian H. Fletcher: But, to the extent that the Court does get to the merits, we'd urge you to make clear that government officials do not violate the First Amendment when they flag false information or malign foreign actors when they answer questions about public health advice or when they speak to the public on matters of public concern the way the President and the Surgeon General did.
Brian H. Fletcher: The First Amendment is a critical bulwark against government coercion, and that's important, but it is also important that Article III courts stay within the bounds of Article III and don't enjoin or chill legitimate and productive interactions between the government and the public.
Brian H. Fletcher: We'd ask you to reverse.
Brian H. Fletcher: Thank you.
John G. Roberts, Jr.: Thank you, counsel.
John G. Roberts, Jr.: The case is submitted.