By Noah Feldman / Bloomberg Opinion
The Supreme Court is gearing up for a ruling on whether the Biden administration may directly speak to executives at social media companies to encourage them to take down content, such as covid misinformation, that violates the platforms’ rules. The question has far-reaching implications for free speech and the president’s use of the bully pulpit, which has long been assumed to allow for some amount of bullying. It therefore deserves a close look by the justices, not just a drive-by ruling.
Yet the case has not come before the court in the familiar form of a petition for certiorari, appealing a lower court decision. If it had, there would be a robust process in which the parties would file briefs, friends of the court would come forward with briefs of their own, a full oral argument would be scheduled, and the court would then deliberate about the issue — perhaps for months — before producing opinions.
Instead, a federal district judge issued a preliminary injunction in July that found the administration had violated the First Amendment by pressuring and coercing people at the companies to remove content. The injunction ordered a range of officials not to speak to anyone at the platforms. (Disclosure: I sometimes advise social media companies on First Amendment issues.) The U.S. Court of Appeals for the Fifth Circuit last week issued its own ruling and narrowed the order to cover only the White House.
The Biden administration, unsatisfied, has now asked the justices to stay that order. In response, the court asked the parties to file briefs by the end of the day on Sept. 20, and stayed the lower court order until the end of the day on Sept. 22. The upshot is that the court could rule as early as the end of the day Friday. (If the justices can’t reach a decision by then, the court could extend its stay or let it lapse.) The case then goes back to the district court.
Regardless, this abbreviated process falls very far short of what is appropriate for such a complicated and important issue.
Two things make this case hard: the law and the application of that law to the facts. To understand the legal issues, you have to start with the fact that, under U.S. constitutional law, the First Amendment limits only what the government can do, not what private companies do. To assert free speech rights against social media platforms, individuals must show that the takedown of their speech is attributable to the government.
The relevant Supreme Court precedent says that when private conduct abridging speech is either “significantly encouraged” or “coerced” by government officials, the First Amendment has been violated.
The first of these, significant encouragement, is a pretty vague standard. The Firth Circuit interpreted it to require that the government “exercise some active, meaningful control” over the private decision.
That’s a good start, but it still isn’t concrete enough. The appellate court held that the Biden administration exercised this “control” by “entangling” itself in the companies’ content moderation decisions through repeated interaction and conversation. As proof, it observed that the platforms sometimes changed their policies during these conversations. Yet conversation, even persuasive conversation, isn’t proof of control. The truth is that the Supreme Court needs to revisit the “significant encouragement” prong of its test and consider scrapping it in favor of a pure coercion test. But that would require full briefing and oral argument at the court, not a rushed process.
As for coercion, that at least is a clearer standard. But in this case, the Fifth Circuit relied on less proof than is usual when the law asks if someone has been coerced. Its main proof of coercion was a White House spokesperson’s comment that Biden “has been a strong supporter of fundamental reforms” like changing Section 230 (which protects platforms from liability for third-party statements) and antitrust policy. That statement of Biden’s general policy beliefs wouldn’t count as coercive in most other areas of law. Neither would the statement that the social media companies must be held “accountable” for their content-moderation policy.
The Supreme Court needs to take a close look at this application of the coercion test; the kind of look that would benefit from full briefing and argument. Ordinarily, coercion in the law requires a more specific indication of threatening consequences. Maybe the Fifth Circuit is right that there is an “unspoken ‘or else’” implicit in anything the president says, given the “awesome power” of the office. Yet without more evidence of this implicit threat, the president would be acting coercively anytime the White House demanded anything from anyone.
The Biden administration certainly harangued the companies, another fact that the Fifth Circuit emphasized. But social media executives are grown-ups, more than capable of disentangling political pressure from concrete threats, whether express or implied. There is a real danger that setting the coercion bar too low will interfere with the government’s ability to use its bully pulpit.
Ideally, this issue — and this case — will come back to the Supreme Court before long, and the justices will be able to give it the consideration it deserves.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”