the oral argument is one hour and 45 minutes.

chief justice roberts: we wl hear argument first this morning, case 23411, murthy v. missouri. mr. fletcher. mr. fletcher: thank you. the government may not use corso threat to suppre sech but it is entitled the speed for itself i informing, persuading or criticizinprate speakers. this case should be about the fundamental distinction between persuaonnd coercion. this is not a typical student where a speaker challees government actions affecting its n eech. two states and five individus are trying to use this to -- with and about social media platforms. th pblem has infected every part of the case. respondents don't have standing because they have not owan imminent threat that the government will cause the platform to monitor your post in paicular. a lowercase viewed a vast range of speech without asking whether it had anything to do with responses. the courts entered a universal injunction restricting speech about any content. enpart from the article three problem, that injuncti rests on two errors. e fifth circuit radically expanded the state action doctrine by holding noncrce indications like those cdc public health voice. and second, the distctissed a persuasion for coercion. it held that theb's communications were inherently coarser cae the fbi as a law

enforcement agency. and itelthe the white house has engaged in coercion because it used ro language. if this court reacs reaffirm that government speech crosses the line into coerci only if viewed objectively. and because no threats happened here, the courts should reverse. justice thomas:r.letcher, is the coercion encouragement frameworthonly way to look at the case? mr. fletcher: one is the ercion inquiry. you can think of that as an aspe ostate action because private parties are compelled to act as stectors. respondents in the lower codes courts have also proposed a ffent way. they suggested that even absent

question the government speech encourages pva action. justice thomas: just so i understandouargument. do we normally apply state ti doctrine in cases involving the government or privatpaies? mr. fletcher: both, i think. in some state action cases you are are alleging the becausth are state actors. you see some suits like that. suits against the platforms or stfo university. you also see students against the government. justice thomas: are there any first amendment cases? employing state action? often, and suing the government. things like medicare or government contracts are relationships like that.

mr. fletcher, yeah, and it gets at the fact thatt unusual -- we think these phases should be viewed through bantam books type framerk where there is a problem if the government stays on the side of coercion. if it stays on the persuasion side and we are talking about government speech and there is no state action. justice thomas: one final question. you continue to feback to government speech. for my edification, what is the constitutional bisor government speech? mr. fletcher: thcot has said the government is entitled to speak for itself. it is not a right that comes from the first amendment. thgornment could not function if it could not express points of view. in walker, it was explained that the government has to run a vainion campaign. the court has not located any specific constitutional ovision. it is just part of democratic governance.

justice sotomayor: can you explain to me what exactly is the injunction dng meaning, how is it affecting the government's speech? there are a lot of defendants. a lot of ancs. i know that our caseload says an injunction cannot te y to violate the law. the fifth circuit injunction is what is before us and it says to encourage or snicantly -- to coerce, that is a legal term, or encouraging you are questioning the meang d significance of "encouragement." let's just use to coerce social medicoanies.

to remove, to suppress, or rece, including altering their algorithms. how is that harmful to the government? mr. fletcher: this court has stayed the injctn, fortunately it is not harming the government now -- we don't say that theovnment can coerce private speakers. but the problem with the fth circuits injunction saying don't coerce osiificantly encourage is that it comes at the end of 80 pages of legal analysis. the fbi would send counications to the platform saying, for your informati i has come to our atntn at the following url's are being used by maligned foreign actors to spread theisformation on your platforms. do witithat you well.

that, the fifth circuit held, is coercive, beusthe fbi is a powerful law enforcement agency. if the injctn was put into place, t f would have to think hard about doing that. e crux of what they claim was coercion was what happened in ly021 when the surgeon general, the white house press secretary and the president made atements criticizing the platforms actions. the idea is troublg at those classic bully pulpit exhortations, public statements are urging actors to behave in differt ys might be deemed to violate the first amendment. if the injunction was to go into affect, ifheresident or his press secretary or someone else wanted to talk to the public about other problems likth circulation of antisemitic or

islamophobic content on social platforms or national security isesll of those things could done only under the shadow of the injunction and that comes ou to the other point which is that this injunction is extremelvae. i think having that vague injunction which- th these contestable legal terms hang over theea of all of these government officials doing these things is a obm. and when you are talking about enring the injunctions at the behest of two states and five invial users whose main complaints about the moderation pts about covid-19 years ago, has not shown that it is reasonable to the government. it is not showing a threat of futurey.

justice alito: let me follow up on that. even if one of the plaintiffs havetaing, we are required to get to the merit so let me ask you abt . hein. as you mentioned, she must have faced an imminent threat of future injury at the time when thcolaint was filed. and that injury must be traceable to the actnsf the government. on the first part of that, minent threat of future injury, her facebook, personal account was restricted at the time when the complaint was filed. why is that not sufficient to show an imminent teaof injury? mr. fletcher: we have not disputed that she suffered the injury. juste ito: on traceability, it is a question of causation. mr. fletcher: agreed. justice alito: the district

court found that the injury was traceable to the govnmt's actions. and the fifth circuit accepted that finding, reviewed it and accepted it. that is two lower courts. we do't usually reverse the findings of fact that have been endorsedy o lower courts. and you haven't attempted to show that the finding was clearly erroneous. mr. fletcher: respectfully, justice alito, i disagree with that. the fifth circuit and district court applied too loose the notion of traceability. they did what is called a birdseye view of traceability. they say the gerent is talking to the platforms a lot

and the platforms are doing moderation. justice alito: you think it is necessary to identify a single government action and then trace it to a single consequence? mr. fletcher: i think you have to trace some government action to some consequence. maybe i could be specific. pas to 21. i invite you to look at the pages in the record because often what you find is that they arciting moderation of their content that happened before that cllged government actions to which they are referring or long after. justice alito: i have looked at that. on the issue of causation are they required to show anything more that the government's action was the motivating factor? mr. fletcher: i don't know the answer to that in all cases. i'm reluctt make broad statements regarding the traceability statement. we are not disputing that. we are saying they have not shown any causal connection. justice alito: no effect whatsoever. you think the lower courts were wrong about that. mr. fletcher: i think they were. it was a blunderbuss approach. the platforms were moderating the content long befe e government talked about that. theyadowerful business incentives to do that.

this is another telling fact. in those roaayood examples we talked about on pages 19 to 21, some of them involved platforms like linkedin which was not even the issue o challenge. justice sotomayor: do you think there are any factual findings with respect to standing that we are required to give a review to? mr. fletch: i think findings of historical fact, absolutely. the ideahapieces of content were moderated and the government made certn statements. and if there had been findings that certa pts were deleted, that would be a finding. there are not such findings. justice kagan: tt what i was getting at. are there findings -- mr. fletcher: i cannot give you

a listecse there are a lot of facts, but we agree historical factual findings count. what we say does not count our characterizations. findings about the application of laundered facts. and findings founded on -- standings. >> i want to nail down your view on legal issues. on redressability, what is you view of the legal standard the court should be applying? mr. fletcher: it has to be some showing that is likely to address the entry if the standardwe a little higher. got to make some showing that an injunction against the government will stop the platform justice gorsuch: in maacsetts vs. epa we said to some extent. mr. fletcher: here the concern is, are the platforms going to

do it because of the government and will an injunction against the government stop facebook. justice gorsuch: to some degree, is that an acctae standard to the government? i want to know my yardstic i take lightly from lujan. i take to some extent from massachusetts vs. epa, and i take the statement in larson that i don't have to agree on alof it. . fletcher: agreed. except theirs was about rising a level, so to some extent it means it does not have to solve the problem t lp it a little bit. justice gorsuch: do you agree with that standard -- to some extent -- that the injury could be remedied to somexnt by an injunction. mr. fletcher: correct,f ey are likely to face moderation on 10 posts and the injunction against the goveme would make it eight, then no.

justice gorsuch: ok. flipack, the substantial means it does not have to be a proximate cause. mr. fletcher: agreed. >> when i read all of the emails exchanged between the white hoe and other federal officials on facebook in particular but also some of the others, and i see that the white house and federal officials are repeatedly saying that facebook and the federal government should be partners, we are on the same team, officialsre demanding answers -- i want an answer, i want it right away. when they are unhappy, they curse them out. there are regular meetings. this cstt pestering of facebook and other platforms and they want regular meetings and they suggest rules tt ould be applied so we can help you.

and i look at that and thought, wow, cnot imagine federal fials taking that approach to the print media. if you did that to them, what do you think the reaction would be? and so i thought, you know, the only reason this is taking place is because the feder government has got section 230 and antitrust in its pocket and , to mix my metaphor ihas the big clubs available to it, so it is treating facebook and the her platforms like they are subordinates. would you do that to the "new york tesor the "wall street journal" or the associated press or any other big newspaper or wireerce. mr. fletcher: there is a lot packed in there, and i want to give you a specific answer and then step back out specifical y mention

demanding an answer and cursing them out. the only time that happens is in an eilbout the president's own account. justice alito: ok, we willut that aside. it is constant meetings, constant answers, we want answers. were on the same team. you think the print media regards themselves as being on the same team as the federal government, partners with the federal government? mr. eter: so, potentially, in the context of trying to get americans vaccinated in a once-in-a-lifetime pandemic. in that piece of it does not change t fst amendment principles but it is relevant to how it is apiehere. this is a time when thousands of americans were still dying every week, and there was a hope that tting everyone vaccinated would stop the pandemic. anthere was a concern that americans were getting their news abo t vaccine from the platforms. anthe platforms were promoting -- justice alito: i understand that, and gng over the

objectives were good, but they were also getting their news from the print media on the broadcast media and the cable media and i cannot imagine the federagornment doing that to them. but maybe that goes on behind the scenes. but it struck me as -- this is nowh i understand the relationship to be. . etcher: i think this is important because i have t same reaction you do. the emails do look unusual. the idea tt ere would be a back and forth betenhe government and the media is not unusl. of course we talked to platforms the same way we talk to all of you. there is an intensity of this and there is an anger that i think it is unusual. e context for that is that these platforms were saying puicly, we want to help and we think we have the responsibility ge people accurate information, and we are doing erhing we can do meet that goal. this partnsh language is not

just coming from the white house. and the anger, most of it, when you read the emails, and i appreciate tt u have, because you have to look at them in context. the angeishen officials think that the platforms are not being transpart out the scope of the problem. justice alito: let me ask yo one more question, a tn i'll stop, at least for now. you make a big point in your brief and your oral ply that states do not have first amendment rights. are you sayi tt they may have a free-speech right but it comes from someplace else? doouhink the federal government could prohibit a governor or the top ranking public health official in a ste from speaking to the residents? residents? . etcher: no, and to be clear, we are not denying that they havspch rights. we are saying that the governments speech rights, from the structure annothe first amendment rights. they are trying to litigate a represent the first amendment right on behalf of their citizens' to have.

justito: do you think, on the anger in i guess i sumed, thought experienced press who regularly -- you said the anger was unusual. i was not entirely there on that om my own experience. mr. fletcher: i don't want to use "berate."

i bet this has not been the rstime that there has been profanity in the exchange of communication between members of the government and members of the press. justice alito: whenever they write something we don't like we can write them and saywh don't we be partners on the same te? mr. fletcher:ustice alito, this is why i want to be caful. i'm acknowledging the reality that this happens anitay become a place. i'm not saying it is a good but fundenlly i'm saying the first amendment is an important protection. against actual portion. bui think it is important to police not lying. this case shows the danger of allowing parties especially parties without real direct injueso come into court and challenge these regular back-and-forths. >> from the partner's point, that does strike me as unusual. mr. fleterthat is traceable. is is not the government where the platforms were sayin w don't want to deal with you on this. you can imagine a situation where there might be our

problem. you might start to think it shes into coercion. this is an open door. they are saying publicly, we want to do our part. we recognize we have the responsibility to be srce of information. we want to be a source of good information. on the white house calls and says we have concerns, they and that is a good point. justice coney barrett: . fletcher, whether or not that ultimately becomes a first amendment violation -- i appria the coercion point in the governments first point with respect to the merit of this -- but i'm terested in your view that the context does not "change the first amendment inciples." i understood our first ameme to require heightened scrutiny of governmt strictions of speech but not total prohibition

when you're talking about a compelngnterest of the government to ensure that the public has accurate information the context of a once-in-a-lifetime pandemic. i'm interested in the governments conceding that if there was coercion that we automatically have a first amendment violation. mr. fletcheri'm not conceding that is the case. our posions that there was no correction to begin with. >> you mentioned coercion reatly in terms of threats. could there also be coeronn terms of inducements? mr. fletcher: they are often the flipside. we acknowledge there can be both but there has to be a threat or inducement of some concrete governmentctn. >> and hypothetically, would a threat or an inducement with reecto antitrust actions qualify as coercion?

mr. fletcher: sure. justice gorsuch: would with spt to 230 qualify? mr. fletcher: the heone is harder. one is that these are executive branch officials. they cannot unilaterally enact 23 justice gorsuch: they have a power to influence that. would that be enough to say but if you do not do x, we are going to cngour position on section 230? mr. fletcher: 0 different because it is about content moderation. it is about this very issue. i government official has to be able to say that i support section 230 reform and i also think the platforms should be doing better. justice gorsuch: i understand that. in terms of advocating for a chgen section 230 -- how about saying you are killing people, could that be coercion in some circumstances?

that if you don't change your moderation policies, you are responsible for killing people. mr. fletcher: i thinth one is much harder. that ia atement that president biden made off-the-cuff. justice gorsuch: i'm not talkg about the context, specific issues. could that, in some circumstances, an accusation by a government official, that unless you change your policy, yoare responsible for killing people, could that be coercion? mr. fletcher: i don't want to say it is impossible. saying it did not haenere. the president said this to the publ ithe middle of a pandemicanthree days later, he clarified. he said, i'm not saying facebook is kli people. he said i'm saying that peop that say this are. i'm not looking to hold anne accountable. i want everyone to look inhe mirror and imagine what would happen if this misinformation was going to their lov os.

i think it's clear that this is anxcpt asia and, not a threat. -- exultation, not a threat. >> thanks, m ftcher. how are we supposed to evaluate that question and the level at which coercion kicks in? if you are trying to coerce or get particular result out of a media outlet, is it enough t say if you don't do this, we will move your reporter' cubicle down the hall? how do you evaluate when it constitutes coercion? mr. flch: i think bantam books has been the lodestar -- around the idea is it a threat or statement that a reasonable

person would understand viewed objectively and in context as a threat of some adverse governme aion. as to the cubicle question, i don't know if there are some advee vernment actions that are so trivial that they don't cot. in general, i think our position is, if tres something the government is saying that we will exercise gornnt power in some way unless you change ur speech in some way, and it is reasonably understood ias threat, that is a first amendment problem. chief justice roberts: bantam books, in context, you are talking about a reasonable person. the back-and-forth between the spokesman and a member of the media, what a reasonable person might view as coercive -- maybe the press secretary yells on a regular basis, and if the volume ineas enough, it might be viewed as coercion. mrfletcher: i think here that strongly reinforces the idea that there was coercion. these were as sophisticated parties that routinely said no to the government.

they were open about it and did t sitate to do it. and when they said no to the government, the government did not engage in retaliation. it engaged in more speech. the presidt d others went to the bully pope it. ully pulpit. justice thomas: back to myoi about coercion, couldn't you censor someone or prevent other speeches ospch by others by agreeing with the platforms as opposed to coercing the platrm you just work together and say, look, we are right and they e wrong. let's work together. are on the same team. let's work together to make sure this misinformation does not gain any following mr. fletcher: lg as the

platforms are exercising their own independent judgment -- that is what the first amendment protects. justice thomas: you are saying that the government cannot censor by coordinating with private parties to exclude others' speech. mr. fletcher:'m saying when the government persuades a private partnoto distribute or promote someone else's speech, that is not censorship, that is persuadi arivate party to do something a private party is lawful to do. and there are a lot of context where goveme officials can persuade private parties that -- could t directly. for example, after october 7 universities were called on to do more about antimic speech hate speech on campus. public officials could call for the changes. the gornnt can encourage parents to monitor their

children's cell phone usage or internet comni. all of those are context where e vernment can persuade a private party to do something the pratparty is lawfully to do. saying your algorithms and the way you are presenting information isaung harm, a we think you should stop. justice thomas: you really don't see any difference between the government coordinating with the atforms to exclude others speech and persuading the platforms to not engage or permit others speech. mr. fletcher: i'm not seeing it. and i think what happened here , if you do see a difference between those two things, my argument here would be that what happened is on the persuasion side of the line. u do see the back and forth throughout the process saying no peedly when they disagree with what the government is asking them to do. i think that is telling you that what the first amendment protects, which is private speakers making independent

judgment, maybe inform bthe government. justice thomas: there is no difference between the platforms meeting and woinout an arrangement not to permit certain speech and the platforms rking with the government to do the exact same thing. there is no difference. mr. fletcher: if the platforms entered into some agemt among themselves, that might raise issues under different provisions of e w. the modest point i'm making is just the government does not violate the first amendment when it psuades another speaker not to distribute speech tsoone else. that is my modest point. that is what happens when the press secretary calls of the "new york times" and says that was a bad op-ed. justice alit othe traceability-causation question, if the plaintiffs show thath government's actions were a motivatingacr, it is not their obligation to sh tt

they would n -that the platforms would not have done what they did were it t t for what the government did. it would be the defda's obligation to show that. mr. fletcher: i'm not su t court has ever determined that applies. in the context of traceability. i would say the court has been phic that when your injuries are attributable to individual independent choices by private actors, that it n traceable and our submission is that is what hped here. justice alito: a less defendant frnd standard on the merits. seems odd. one last question, really quickly, you have never argued that this case is moot? mr. fletcher: we have not. justice alito: thank you. jutice sotomayor: we don't do a lot with clapper, and it seems

that clapper really does change a lot of the cases in terms of requiring a heightened traceability standard, does it not? mr. fletcher: we think clapper is very instructive. we think it is relevant to traceability and most relevant at the future injury question. i think we are right about traceability with all of the past moderation of their content. i think weren stronger ground when they say the vast majority of what thear talking about is covid-19. their burden is to show they face an imminent threat. that is showing that the injuries will occur. the extent they are censoring themselves, and the actual government caused harm, that is not enough. jutice sotomayor: if you go back to the0-y suspension, do we know exactly what was censored? mr. fletcher: i don't think we

do. justice sotomayor: i was looking for it, and i could not find it. mrflcher: i would go through the brief, pages 19 through 21. there are not a lot of specifics. when the dates are provided, they don't line up. the first example on page 19 of the red brief, i think it is ms. ne where she gets her retweet from robert f. kennedy, jr. is suppressed by twier she does not say tt governments statements happened between januy d july of 2021 and the moderation of her retweet happened in riof 2023. years lar,fter twitter had been sold and after it had

abandoned its covi19olicy. i think there is a traceability problem. juceotomayor: thank you. chief justice roberts: justice kagan? ste kagan: on the cores in question is there anything we have treew on clear error? mr. fletcher: historical fact, th statement was made. it was not made if there were specific ftu findings made. things like -- this was pressure or coercion, we thinthe were characterizations. and the ultimate first amendment standard of was this viewed objectively in context, we think that is the overview. justice kagan: and on the past rmuture harm question, i take it that inouture harm, that is independently sufficient, is that right? mr. fletcher correct. justice kagan: would there be any difficulties with confining the hointo that if we were toinfor you? mr. fletcher: i think iso ways that is the easiest w t resolve the case. this is an action for injunctive relief. we don't have to adjudicate the

parties over past harm, we just have to execute the burden. justice gorsuch: in uriew, one is the time we should be considering that? probably not today at findings, right? mr. fletcher: it might be even earlier than that. justice gorsuch: it might be the complaint? mr. fletcher: the colat for the states is may 2022 and the inviduals get added in august of 2022. but whether they have shown a likelihood of irreparable harm , which is a requisite standing for injunction relief. justice gorsuch: ok, so that is a relative date.

when we are looking at coercio is it in your mind a relevant consideration that the industry is very concentrednd therefore coordination problems that otherwise might be difficult with the media, which are very divsemight not be present in some cases? mr. fletcher: context matters. in some ways, the fact that these are very large corporations does against a finding of course and because they are sophisticated. hesitate to say that it suggests you should change the first amendment standards. justice gorsuch:'m not suggesting that. the night brief said jusit might be a relevant factor there such concentration that it makes coordination among private the government entities and private entities easier. d u disagree with that? mr. fletcher: i'm not su. whether i agree with that. the point is that for our purposes the constitutional line is between coercion and not portion. justice gorsuch: in these context ecic inquiries we ha dcussed, you have pointed out one way in which coentration might make it less susceptible.

do we veo account for the possibility as well, not being specific, make coercion's easier? mr. fletcher: if that were true, you would have to account for it . i think the concerns about concentration in the industry go more to the potential effects of course and if it happensers whether or not portion happens. i get that. i'm sensitive to that. what i was trying to draw was at the first amendment is not the answers to the problem of concentration. chief justice roberts: justice kavanaugh? justice kavanaugh: so i understand your key legal argument is that coercion es not encompass signifan encouragement orntanglement, and that it would be a mistake to so concludeecse traditional everyday communications would be deemed problematic. mr. fletcher: exactly right. and relay what the lower courts veone is go beyond the coercion test and openly say we e going to open up this state action encouragement door.

that, i think, risks turning the about forms and others interacting with the government into state actors restricting their editorial chce adverse government action. justice kavanaugh: on the "killing people," hypothetical or not hypothetil,ut statement, that raises national security analogies. i don't know what your experiences are if you are plugged into this, but it is probablyotncommon for government officials to protest an upcoming story on surveillance or detention policy and say, if you run that, it is going to harm the war effort and t ericans at risk. mr. fletcher: i cannot profess

to have had peon experience about that. i know it has happened. think that is an example of a valuable interchange alo as it is on the persuasion side of the line. i think platforms want to know if they are publishing a story and they mig p lives at risk. theyo't have to listen to the government. justice kavanaug a to tack onto that, if you post the story, we will pursue antius action against you? mr. fletcher: a huge problem. yes. justice kavanaugh: you don't describe what you think the common interactions are -- i mean, what do you think those are? mr. fletcher: at issuinhe complaint? justice kavanaugh: no, just in general, you are speaking on behalf of the united states. myxperience is the united states and all of its stations have communications with the media abouthgs they don't like or don't want to see or complaining about factual inaccuracies. would be interested in what you want to describe aboutha mr. fletcher: i think that is exacy right.

i won't profess to give u comprehensive overview. we have looked at this carefully in the context of these injunctions. it comes inta uple of different buckets. one is engagement on matters o public policy and i think that is what was going on here. child and mental health, antisemitic speech and islamophobia language is on that line. another is the national security space. they mhtant to use legally the bully pulpit. another is the national security space. the record iclr is there on the fbi providing these foreign maligned selected actors for the platforms to take action if appropriate. there is also domestic law enforcement side of things and child pltation and things like that. the platforms are a vector in those rtof activities, and the government communicates with emn things like that. there is also government election issues. false statements of tes

saying "if the polls are closed early, d't bother to vote," in an effort to suppress the vote. thossos of things are of can swn the law enforcement entities. i think there is also the cdc's interactio iolving providing advice -- by the way, we are seeing a lot of isnformation circulated on your platform that is not true or is misleading about somethg put out. and some of the information you got from the amicus briefs is that there are a lot of ways that the government has information that would be helpful, and it would be a shame to chill that information. justice kavanaugh: tnkou. ste barrett: this is a question about the interplay between bant bks and state action generally. justice thomas, he was talking outhe distinction between encouragement and coercion. what if facebook sd,ou know

what, we are partners. we are on the same team. this is a oncen-lifetime pandemic. we think it would be most helpful r e public good for us to turn over our content moderation to you. ats not coercion. it is voluntary on facebook's rt, but would it be state action then? mr. fletcher: that starts to veer into the joint action or doing something togeerhere the government is doing things making decisions. its not just advising the platforms. the rubric may well be state action, but the rubric may be more found in the joint action cases then offer significant encouragement. justice barrett: how do we consider the relationship between those things? because i agree with you, bantam books is about drawing thein there, but there are some times when things veer into the joint action space where we might say there is a state action, and there is a dispute in this case about which frewk is the right one. what advice do you hav

mr. fletcher: if i were the cot, i would want to be cautious about making too denive pronouncements. i would say, here, what is challenged ithat the persuasion prosi of information and that when those are issued the main yardic will be bantam books, and the concern is, have you crossed the line from trying to persuade to trying to threaten and bantam is thrit way to draw the line. there are a lot of different briefs -- and many agree this is the right line, in this ntt. i think you can reserve and say it would be a diert question if you're talking about the government and the platforms acting together and turning over operable control. it is rely not the kind of issue here. juice barrett: and that is not alleged here. mr. fletcher: exactly right. yeah. justice rrt: you were pretty consistent with justice kagan, saying that we don't have to review any of the district court's factual findin.

i just want to make sure that is right, bau i'm thinking about things you talked about with justice alito, the interchange of the expletives, we are getting mad, we want answers now -- and that s actually about his own facebook account. or there was another exchange thatasctually about someone impersonating the president' granddaughter on twitter. if the lower court, which i think they did, conflated some of those threats with threats that were designed to be threats related to the pandemic, that th kd of suppression would not car error? mr. fletcher: guided not ano say there would not be clear error at old. --t all. i just meant to say it would be findings for historical fact. and those do count but i think

we pointedutlaces where there are clearly erroneous. we might agree there that clear error applies but to the extent that the lower courts were suggesting ith things were said were not said. justice barrett:n nsidering traceability, you would say that maybe the e some things we would review for clear error , because theyererroneous -- asming that you are right -- the erroneous conclusion depended partly on factual errors and partly on applications of facts. mr. fletcher: correct. thanks. justice jackson: i d n perceive there to be such a sharp distinction between blom and bantam books. the government seems to be arguing here that bantam books t way to go and that blom is not the right test. i appreciate that blom uses significant encouragement, but i think itay the question is whether the government has provided such significant

encouragement, either overt or covert, that thehoe must in law be deemed that of the state. that it is suggesting in the same way that bantam books is, that it is really about coercion as opposed to just encouragement. am i wrong to think there is really not that much difference between the two? mr. fletcher: i don't inyou are wrong there. i think we say that is the w you should read significant language. it makes a big government's choice. you can view that ashelip side of the circuit cotsof threats for bantam books. the lower courts and my friends on the others have really tried to turn that significant language into something quite

different, into circumstances wherthgovernment encourages in some colloquial sense by persuading something or advocating for something. and we do not think that these court state actions ever sd. justice jackson:k, understand that. and even if we have a world in which signifanencouragement is verboten, is there something different t government providing information? i aittle worried about the respondents -- what i think could ten away from their viewwhh is that in situations where the government has information that may be unique to the government's knowledge, but that it feels important for the public to ha, at that somehow becomes prohibitive, if, as a result of this information, these companies decide they will do something different with respect to content moderation. mr. fletcher: that is our big concern, and i think that is what the lower courts found across the line. the fbi providing information about covert actions on platforms versus the cdc asking questions about tts of public health. i think it would be troubling to save of those things are impermissible. justice jackson: thank you.

chief justice roberts: thank you, counsel. >> good morning, mr. chief justice, and may it please the court. government censorship has no place in our democracy. that is why this 20,0 ge record is stunning. as a fifth circuit put it, the rerdeveals unrelenting pressure by the government to coerce social mediplforms to suppress the speech of millions of americans. thdirict court which analyzes records for a year described it as arguably the most massive attack against free speech in ameranistory including the censorship of renowned scientists opininin their areas of expertise. the governments levers of pressurerend nothing much to

the first amendment. bendlosed doors the government watches the platfms 24/7, it abuses them with profanity, it warns that the highest levels of the white house are concerned anit ominously says the white house is considering its options and it accuses platforms of playing ball and hiding the ball. all to censor more speech. under this onslaught, the platforms routinely ve last month, the platforms told you it isn't -- incredibly important that the platform create the o content moderation policy,uthis record shows they continuously depart from those policies because of unrelenting government pressure. as facebk cently disclosed in an internal email to a former u.k. deputy prime minister, the reasonacook did that was because we were under pressure by the adminisatn. we should not have done it. now, my friend says all of this cstitutional because the government has the right t persuade using the bully pulpit. but the government has no right

to persuade platforms to violate americans constitutional rights. and pressuring plaorms in back rooms shielded from public view is not using the bully pulpit at all. that is ju bng a bully. i lce the court's questions. justice thomas: counsel, i know your argument is a bantam books argument, but do you need coercion in order -- you think that is the only wayouould make your case, or could coordination accomplish the same thing? that is the government is nsoring by joint actions with the platforms as opposed to cocing the platforms? mr. aguiñaga: your honor, we do not need coercion as a theory. that is why we lead with encouragement in our red brief. in norodthe court or the government cannot induce, encoag and promote private actors to do directly what the governmentant itself do directly. th ithe principle guiding here. regardless of the means that the government tries to use to pressure the platfmso commit censorship against third

parties, the constitution does not care about tt. it is the fact that what the government is trying to accomplish is the suppression of speech. i was there, your honor, that is extlhow you address this question at bantam books. did the government set out to deliberately suppress speech? the answer in that case was yes , and thats e answer in this case here. i would y en this court considered bantam books, one of e y things about the analysis was that it was an obscenity case. the court struggled with whether the state has the right to li the line between legitimate speech and illegitimatepeh. and that is why you're talking about coercion in that case. you are asking -- justicsomayor:'m sorry, the reason we were asking about coercion because the private parties could have chosen on their own toenr that speech. they could have said, we think

it is obscene, and i will be inlv in this. the only issue became when that choice was overwritten by the government. and so, i think you are mixing situations and confusing legal doctrines. mr. aguiñaga: no, your honor, the fundamental principle and this comes from norwood and is central to the press to mimic case ith the government cannot do indirectly what it is prohibited from doing directly. and that is what you see happening in bantum books and in a case like this. time and again there were times when the social media platforms had policies that dinot go far enough in censoring the speech that t government wanted censor it. justice barrett: whether or not the govnmt can do this -- and this is something i took up with mr. fletcher -- it depends on the application ofurirst amendment jurisprudence and there may be circumstances in which the vement could prohibit certain speech on the internet or otherwis

do y dagree about we would have to apply strict scrutiny and determe ether or not there is a compelling interest h the government has tailored its regulation? mr. aguiñaga: certainly, your order, at the end of every first amendment analysis you will have the strict scrutiny framework -- justice jackson: so not every situation in which the government engages in conduct that ultimately has some efft on speech necessarilyecomes a first amendment violation, correct? mr. agña: not necessarily, your honor. has a government set out to abridge the freedom of speech? in this case, you see that ti and time again. justice jackson: this is noa test for first amendment olions. mr. aguiñaga:hiis the first amendment, right? stice jackson: i understand, but we have a test for whether or not the first amendment is actually violated. in certain situations, you know,

the government can actually require that speech be repressed, if there is a compelling interest, correct? mr. aguiñaga: it has never been litigated. the questi in this case is whether thgornment itself -- justice jackson:justice jackso it is collusion, it is a state action, right? th is the question in this case. mr. aguiñaga: i would encourage the courts to view this the same way you did bantam books. used that term four times in bantam bks justicsomayor:ncouraged to suppress their own speech. so, like justice kavanaugh, i have somexrience encourin [laughter] you justro a bad editorial. here are the five reasons you should not wri ather one. you just wrote a story that

filled wh ctual errors. here are the 10 reasons you should noto it again. this happens thousands of times a day. mr. aguiñaga: in e modeling case you'reescribing to make a vein of t gernment going after the speaker themselvesnd trying to get them to change their spirit was soaked and is just here is you do not see the facts in this record unless we get discovery. when the deputy assistant to the president sends an emails of facebook or itr and complained that they are not doing enough to censor wita view avaine hesitancy speech, the third party, people like jill hines and jim hoff, whose of speech the white house is starting, they ner ow that is happening behind the scesand i think it makes a dierence, justice kagan, that you have an intermediate who has no incentive to defend jim

half's speech or jail n' speech. what about abe? mr. aguiñaga: -- op-ed? . uiñaga: if the newspaper declines to run on op-ed, that author can go to anyumr of publications and have an outlet. it is not the same here because if i am on twitter and i wish to express a viewpoint that the vernment wishes to censor and twitter bows to that presse >> i was just going to say first, i have no ence coercing anybody. [laughter] second, e vernment is not monolithic either. i suspect when there is pressure put on the platforms or one of e her media outlets, they got people they go to probably in the government to say, they are trying to get me to do ts, and that person may disagree wi what the government is trying to do. it is not monolithic and that has to dilute the conct

coercion significantly, doesn't it? mr. aguinaga: i am not sure i agree with that. i guess i wod t back to one of the earlier points that whether you llhis coercion or encouragement, promotion, inducement, whatever it is, if the gornnt is attempting to abridge the speech rights of a third party, that has to b unconstitutional because it lls within the plaintext text of the third amendment. this is bantam books of the 21st century. yohan't had a case with social media platforms like this where a third-party's speech is so at risk. >> how do you anyza situation where maybe epa is trying to coerce the platform about something and the army corps of engineers is trying to coer tm the other way? you can't pick and choose whic part of the government you are concerned about. obvisl it is different when you're talking about what the presenis saying in particular, but other than that, i think it is a reluid situation than anything else. mr. aguinaga: ats fluid, your honor, but as we have plaintiffs in this caswhwish to express certain viewpoints that have been specificall targeted by the government, it is not at least fluid in these facts.

this is not a case about covid, it is ouelection integrity, it is a case that the court has aboundinabt -- >> what about that? take an example where -- these platforms, they are compilers of speech. let's call it part of law enforcement says you may not realize it but you are hosting a lot of terrorists speech, which is going to inea the chances that there is going to be some terrible harm thats ing to take place, and we want to give you this infmaon, we want to try to persuade you to take it

down. the government can't do that? mr. uiga: the government can absolutely do that. >> you are asking emo take down the speech. mr. aguinaga: terrorist activity, criminal activity, that is not protected speech. absolutely, the government can inform -- >> terrorists engage in things that comunr the first amendment. let'say they are just recruiting people for their organizations. mr. aguinaga: your honor, if i isirst amendment speech, protected speech, i think were in an entirely different world. and this comes up in the fbi findings the district court made because what was happening was sending encrypted messages to the platforms identifying what the government represents is foreign actors. the district court found the government was not distinguisngetween whether it was domestic or foreign conduct. the wath issue arises is maybe you have a foreign actor who tweets "i love biden" and there are 20 million people who wish to retweet that, repost it wi tir own comment saying, i love biden too. enn american does that, that is first amendment protected speech.

when the government comeinnd tries to take down every single post that contains theorthat they say was foreign speech they are also taking down the added speech by amics. that is where the first amendment issue is. >> bacwh this happened, decades ago it happened all the time, which is somebody from t whe house got in touch with someone from the washington post and said, this will harm national security,ndhe washington post said, ok, whatever you say. we didn't know enough, but that was coercion? mr. aguinaga: i thought i understood the government this morning to say that might be a first amendment issue. what i would say is if there is a national security interest, maybe the government can satisfy circuit scrutiny in that rcumstance. we would not have a lawsuit

based on that because i don't know how we get perspective based on reach out from e white house. >> what i am trying to suggest is there are all kinds of things that can appear on tse platforms that do all kinds of different harms, a t inability of government that you are suggesting to reach out to its platforms and say, we want to give you infoatn that you might not know about on this, and we want to give you our perspective on what harms this is doing, and we want to be able to answer questions that you have because we really do think wld be a good thing if you, on your own, chose to take this speech down. >> if those were the facts in the cas it would be a much harder case for me. >> i don't know what your standard is. you just told me that was good enough for you. mr. aguinaga: no, your honor, because in that circumstan y have a platform who is reaching out, or the government reachg out to identify what it views as

the right state of the law. the government, this court has made clear for a while, since its plurality opinion alvarez, if there is full -- false speech, the reality is true speech. nothing prohibits the goveren from going to that platform and saying, we have seen a lot of false infoatn about election activity and covid and vaccines d the like. nothing prohibits the government from prodi a list that says, this is what we say is true and you should amplify our speech, and u ould put our posts ghnext to it saying this is the government's view on is issue. e problem here, and i think you see this in the summer of 21 after the white house goes nuclear on the platforms ith the platforms themselvesevse course on their own policies. this is one of, in my view, one of the hottest docs because you have this email from the former deputy prime ministeofhe u.k., and after l is pressure for months and months,

he sends ts ail to the surgeon general and says, thanks for ki the time to meet. i wanted to make sure you saw thsteps we took this past week to adjust policies on ate are moving, to take steps to further address e fo. we have remove39rofiles, pages, groups, instagram accounts. we are continuing to make other accounts hard to find. this is anxale of other platforms moving beyond what their policies require because they felt pressured to take more aconnd sensor more speech. if that is not the clearest example of the government -- >> point to me where you have in the record that the ounts that were taken out were related to any of the petions here? mr. aguinaga: sure. >> and give me that cite again. mr. aguinaga: roa 1522, and what

that email mentions is the so-called disinformation dozen. th ia group of people the government thought was responsible for the majority of paragraph so-called fi minformation on social media. in paragraphs vend six of each of the supplemental back declaraonin the joint members appendix, each oou individual plaintiffs specifically identifies the facts that they follow members of the so-called disinformatio dozen, they repost their post, they engage with their speech. so, when the platforms in response to the pressure a taking down content and accounts related to those individuals and call it the disinformaon dozen, that is impacting our plaintiff's right to engage with their speech. >> they took down someone else's posts. that is what this is saying. mr. aguina: at is what i was quoting right now. >> i don't think we have ever been stainon the basis of

injury to another. inryo you but not to another. mr. aguinaga: let me give you jill hines one more time. is is a screenshot of a tweet mr. fletcher mentioned. this is censorship four times over because this is a tweet, and april 2023 ionhe eve of the preliminary injunctio hearing. what she says is this facebook post i posted was taken down by facebook. shgot a warning for it as a violation of community andards. what was that post? it was a screenshot ofobt f. kennedy, jr., a member of the so-called disinforti dozen. the tweet was talking about tucker carls, o the administration was obsessed with. >> i'm sorry, the rfk tweet, there is only a record of the white usasking twitter to remove tet, and not

particularly this one from rfk. that does not help hines' claim that the white house asked facebook to remove anything. mr. aguinaga: it does, your honor, and this is a good example of thentrelationship between the various media platforms. you have crossstg. what happened in this example, jill hines tk screenshot of a tweet, then moved it to facebook and posted it as her own facebook post. when she did that, she moved rfk's tweet, and i was going to describe that tweet. he wasalng about tucker carlson, who the white house targedn the joint appendix. >> i have such a problem with your brief, counselor. u omit information that changes the context of some of your claims. you attribute things to people who it didn't happen too, at least in onef e defendants. it was her brother that something pped to, not her.

i don't ow what to make of all this. because -- i am not sure how we getorove direct injury in any way. mr. aguinaga: justice sotomayor, let me start by apologizing if anaspect of our brief was not as forthcoming as it should have en. i take full responsibili f that. i apologize for that. what i would add to the second part of your question, i think jill hines has the best standing for our case in ltle ways. one of the ways you look at her standing is you look at ja715 to 716. this is an email to facebook, where the white house ecically asks facebook to t distribute so-called vaccine hesitancy content, and also to target health groups that do that. that is ja715 to 716. you go earlier to 63 this is jillin' allegations.

what she says is two months te the white house email i described was in may, two months lar in july and later in ptember, jill hines had two health groups in louisiana that were blocked by facebook. i think this is one of the scariest examples in the record of what is at akhere, which is those groups were political action group louisiana had a legislative session pgress. what jill hines was trying to do was moli people to support certain bills and other legislative materials that were th pding in the state legislature. because the government put them on the scales a couple mth before, and lo and behold once jill hines tries to e e groups that the government targeted, she can' they areulled down. her political organizations stymied. that is all over the ror and that is one fraction of the kinds of harm that is at stake here. >> can i a -- i want to go

back to the interchange with justice kagan about the standards because i have to confess thatt ft me very confused. it souedike you were articulating different standards, different legal standard, depending onifrent factual circumstances. for example, when justice kagan gave you the hypothetical of pressure being placed on the new york times owaington post not to run a particular op-ed, it smelike you backed off and said significant encouragement would not be enough because the people wh wrote the op-ed would go to other news outlet. you made the point that this is different because socialed is such a concentrated industry, which is a point that sts gorsuch was asking mr. fletcher about. can you clarify that did i misunderstand? because it seems to me that as a matter of law,heame legal standard would have to apply across all these areas. mr. aguinaga: i think that is ght, and i apologize if i wasn't clear earlier. the top line legal standard i ulstart with is 635 in norwood, the court cannot do indirectly what is prohibited

from doing directl the second line in response to that is, what sorts of indirect mechanisms can the government use that would run afoul of that rule? one particular mechanism is coercion, another is enuragement. this court has also used -- >> encouragement, or ds have to be some kind of significant encouragement? because encouragement would sweep on an awful lot. mr. aguinaga: the top line answer is, i am a first amendment ri, but we don't need thatoin in this case because we are so far afield of whev that threshold is. if you want to say substantial coagement like the fifth circuit said, absolutely, that is standard that works. let me just ask you, let me give you a hypothetical. let me say you getox and so do numerous other members in the louisiana state vement. someone is pti online about how people should really rally

and do somhi about this. people should rally and you shou bharmed. the fbi sees these posts and calls the social media outlet, x, facebook, whatever, and ss, we really encourage you te these down because these are significantly threatening and we see some people may be responding to th. mr. aguinaga: my first question is whether that ulbe protected speech. >> let's assume that everything that is said -- i was trying to make it short of actually being illegal. your mr. aguinaga: as i say, i am a purist on the first amendment, so awer would be yeah. >> do you know how often the fbi makes those kinds of calls? mr. aguinaga: if you think there needs to be more, the fbi absolutely can ideifcertain troubling situations and let the platforms take action. the hypos are very important, but wh y look at what is

happening in this case, what they are doing, there iso emergency, nothing of the sort. >> that is falling back on this case is different, this case is different, so i different legal standards should apply, but what we say in this case matters for other cases, too. >> it does, yo hor. what i wouldayn response to that, and i am sensitive given the hy tthe outcome, but what the fbi is doing is trying to persuade a speech intermediary to take dowa private third-party speech. that is covered by the plain text of norwood. on abridgment of speech. >> i would think part of the reason why you might be running into all of these difficulties with respect to the different ctl circumstances is because you are not focusing on the ct at there are times in which that the government can, depending on the circumstances, encourage, perhapsvecoerce, because they hava mpelling

interest in doing so. that is why i ke cing back to the underlying first amendment issue, which we can isolate in this case and talk about coercion. but i thk u have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it dn,ell them to take it down. what about the hypo of someone posting classifiednfmation? they say it is mfr speech rights, i got access to this informatio a i want to post it. are you suggesting the governmentoun't say to the platforms, we need to take that down? >> no, your honor, because i thinth would be a great example where strict scrutiny would be in the government's favor. >> what do we do a situationn which -- i guess in this ce are asking -- the government's point is we did not coceand i appreciate the debate about that. but you just seemed to suggest that as a blkematter the government doesn't have the ability eourage or require

this kind of censorship. and i don't know that's the case. mr. aguinaga: your honor, i guess this goes to the bully lp as well. as i understand it, the bull pulpit has never been used to taet the object of suppressing a third party's speech you can use it to coerce behavior, to course companies to take certain actio b when a government is identifying a certain viewpoint and content it wishes to eline from public discourse, that is when the first amendment problem arises. i am struggling to find an example in the court's cases or history where the court or anody else has said the vernment by virtue of being e government can use its power to pressure its speech intermediary is eliminate entire viewpoints and content from the public discourse.

>> can i give you a hypothetical? mr. aguinaga: sure. >> suppose somebody started posting about a new teen challenge that iols teens jumping out of windows at increasi evation. this is the challenge. and dsll over the country start doing this. there is an epidemic. chdr are seriously injuring orven killing themselves in situations. is it your view that the government authorities could not declare those circstces a public emergency and encourage social media platforms to take down the information that is instigatinth problem? mr. aguinaga: the government absolutely can use the pulpit to sapuicly, here is what we recognize to be a public health issue emergency. obviously it is extremely terrible and the public should not tolerate thi we see this going on in the platforms. >> but they cannot call the plforms and say, we think you should be taking this down because look at the problems it is causing? mr. aguinaga: if it is protected speech, we are getting closer. t that is clearly the way

you are asking the question, i understand the instinct that that may not be a first amendment issue. i guess what i fall back on is at least where the government itself, there is no emergency -- >> my hypothical is there is an emeen, and i guess i am asking you in that circumstance, n e government call the platforms and say, this information you are puttg on your platform is creating a serious publiceah emergency, we are encouraging you to take it down? >> i was with you until that last comment. thk they can call and say, this is a problem, it is rpa on your platforms. but the moment the government tries to use its ability as the government and its stature as the governme tpressure them to take it down, that is when you are inrfing with third-party speech -- >> go ahead, finish. mr. aguinaga: the third party is

absent from the conversation. the third party whose speechs being censored is absent from >> do you think that justice jackson's hypotheticals end with, we encourage you to take it down, does that rise to the level of coercion you think is problematic? mr. aguinaga: if the test is coercion, i think i might ha a harder case saying that is coercion. i think by its definition, it is easier addressed as a substantial encouragencase. but whether it is encouragement or joint parcition and conspiracy, at the end of the day, iwh the government is trying to do is eliminate viewpoints from public discourse -- ain, under my colleague's hypothetical, it was not nessarily to eliminate viewpoints, it was to elimat instructions about how tenge in some game that is seriously harming children around the country.

and they say, we encourage you to stop th. that violates the constitution? mr. aguinaga: i agree that as a policy matter, it might be great for the government to be able to do that, but the moment the gornnt identifies an entire category of content it wishes t be in the public sphere, th is a first amendment problem. >> thank you. justice thomas? stice alito? >> mr. aguinaga, i think some of your most recent conch we have -- colloquy with my colleagues have gotten off into questions that i didn't take from your brief that we actually need to deciden is case. so, i thought your principal argument was that whatever coercion means is sufficie a coercion doesn't apply only when

the government says, do this, anifou don't do this, there will be legal consequences, when itays that in the same breath. but it is a more flexible standard, and you have tta into account the whole course of the relationship regarding this matter. that is what i tk be your principal argument. did i understand that correctly? >> that is correct, your honor. we've got 20,000 pages in this reco othe government persist -- persistently going back to atrms time and time again, pushing them to adjust the policies, do more censoring. i think that is what makes this case so unique is you ha ts fast repetition of communications, but iall, the bulk of it, is behind closed doors. that is what is so pernicious about this. if we d't have a remedy in this case, it is hard to see how therwi ever be a remedy for a future plaintiff who turns out toe nsored but it is difficult for them to even identified whether that censoring actually happened. >> you got all this information

through discovery, is that correct? >> that is correct, your honor. >> justice sotomayor? justice kagan? >> can we go back tohe standing question? if i ask you f t single piece of evidence, and maybe this is the piece that you were describingarer. i want to make clear what your answer is. the single piece of evidence thatosclearly shows that the goveme was responsible for e your clients having material taken down. wh is that evidence? and what does it say about how the government was responsible? mr. aguinaga: sureyo honor. i think jill hines is the best example on standin >> even on that one, i didn't understand whayowere saying, how you dr t link to the government. we know there's a lot of government encouragement around here. we also know that the platrm

are actively content moderating, and they are doing that irrespective of what the government wants. so, how do you dece is government action as opposed to platform action? mr. aguinaga: your honor, let me answer your quti directly. the link iasrawing was a temporal one. two mont aer the email, callfotargeting health groups like jill hines' group, shexriences the first example of that. >> in two months, a lot of ings can happen in two months. that decision two months later could have been caused by the government's email, or the government email might have been long since fgoen because there are 1000 other communicatnshat platform employeeha had with each other, 1000 other things that

plfo employees have read in the newspaper. why would we point to oneml two months earliernday it was that email that made all the difference? mr. aguinaga: and i would say 1000 other emails between the white house and facebook in those two months, that is the volume of this interaction, this back and forth between the atrm and the government. >> but if it is encouragement -- l's even take that this was something that the government was continually pressing encouraging. encouraging the platforms to do. until you can show that there is something about overbearing the platr's will -- it seems sort ofard to over bear facebook's will, from what i can gather from the world, but how do you say it is the government rather than facebook? mr. aguinaga: what i would say

is the context in which these communicatio ase, the facebook emails are attempting, they used terms like partner. theyryo work with the government. you could say the same thing about how you knowt facebook and not the government, or how do you know it is the government or not facebook? >> we could say that about pretty much everything that is in your brief, that there is just nothing where you can say, the government said take down that communication. the governments king some broad statements about the kinds of communicatis it thinks are harmful. facebook has a lot of opinions on itswnbout various kinds of communications it thinks harmful. if you're going to use standard ids about traceability and redressability, i don't e a single item in your brfshat would satisfy our normal tests. mr. aguinaga: i will give you one more example.

page 20 of the brief. we know that his name and the gateway nds specifically appear in the tracking spreadeethat the fbi uses. welso know that the eip, the election integrity partnership, this report found it a million times. it looks like they have a coordinated effort to get jim hoff. i think that is our second best example. page 20 of the red brief. chief justice roberts: justice gorsuch. >> you spoke with justice kagan about your best examplon traceability. how about redressability by the time it came around, we are in 2023. mr. aguinaga: we had two supplemental declarations at the end of the joint appenx om jim hoft and jilhis that identify the specific posts they have posted on twitter and facebo ding the pending

preliminary injunction proceedings. one t ones we talked about was ja793 and 794, which is th jill hines facebook posts referencing rfk, refenng tucker carlson, referencing vaccines. it turtles all the way down. all of theserexamples of injuries that postdate a lot of the earlier filings in this case. when you talk about that, this is in order to the government to knock continue in the sorts of censorship that leads to these nds of censorship decisions. >> i would like to talk iey about remedy. this is another exame a universal injunction, and the district courtnjned behaviors and actions to parties not affecting your client. we have seen an epidemic of these lately. what do we do about it?

mr. aguinaga: a couple of responses to that. one of the reason thbrdth of the injunction is what it is is what was explainedn 81 to 83. the breadth of the government's enterprise was ere they -- extremely broad. i spoke with justice kagan about whether or not you can identify them cli out jill hines specifically. the reas iis hard to do that is they were not cutting at that level in the weeds. what they were taking were broader strokes, like vaccines are safe for children, calling at claim true, then having the platforms go out and since her --ensor contrary claims. the reason y s the breadth of the injunction, it is a product of what the government did. >> every universal injunction casebuyour clients are your clnts. they are the only ones complaining. it is their case, thr controversy. normally our remeds e tailored to those who are

actually complaining before us and not to those who aren't, right? mr. aguinaga: you can see how we are completely fine if you want to lim t injunction to the five platforms in which we were able to geprary discovery. that is completely fine with us. ifouant to limit to the seven plaintiffs, also completely fine. i think the most important take away is the court has toay something in our favor. the government cannot just run rampant pressuring the platforms to since her public speech. chief justice roberts: justice kavanaugh. >> on bant books, i read that to refer to coercion and not significant encouragement. mr. aguinaga: i think that is rit, although if you look at ge 66 to 67, the court used the term coercion alongside the term persuasion. i think there is flex ability in those terms. you can imagine a world in which you can call persuasion another variety of encouragement. as i say, i am not wedded to any label, we are not wedded to an label, but i agree the word encouragement does not appear in bantam books, your honor.

>> and one thing i want to square up thou is if someone cas d contacts a social media company and says what yo ha there, this post has factually erroneous foation. so not a viewpoint that we disagree wh,actually erroneous information, and the social media company says, we wi te a look at that, and you still think that is significant encouragement that qualifies asoeion if they take it down in response to concluding that is in fact only factually eonus? mr. aguinaga: if it is the government sinthis is our view of the statement -- >> we think it should beak down. it is up to you, but we think it shoulde ken down. mr. aguinaga: i think that is a harder case for me. if you think it is a close case -- >> what about the first

amdment? that is the question here. you cannot just claim the mantle. when you say i a harder case, why do you think it is a harder case? mr. aguinaga: because i understand thensnct that asking very politely or saying should take it down, that that shldot be a first amendment problem. the reality is when someone like the fbi or deputy assistant to the president makes a e. that is just the rli. my dear mother is a saint and if she makes e me statement to itter, they don't know her from ada why is that? is it your assumption that anyone in the circumstances are always implicitly threatenin adverse consequences? mr. aguinaga: no, your honor. this is where i inbantam books is good for us. you look at the substance of the commicion and say, what is thgovernment doing here? is it trying to suppress third-party speech?

>> the hypo was about factually inaccurate. mr. aguinaga: right, factually inaccurate information, and if the government says our view of that is that it is false, they can sotely say that. but if they do more and say, you ne to take it down -- >> you should take it down mr. aguinaga: you should take it down, that is a first amendment issue. >> something factuly inaccurate about what the u.s. troops are doing, you should take that down, it is factually inaccurate, it is harming the war effort, it is not accurate. you are just running post after post describing what is going on in an inaccurate way, and it is up to you, but why should you be publishing that inaccurate information? mr. aguinagathnorth star for the government in that situation is the true speech should counter what they think is false speech. e vernment is not helpless. it has tools at its disposal and censorship has never bn e default remedy for a perceived first amendment violation.

>> what do you do with the fact that the platforms say no to the government all the time? mr. aguinaga: it doesn't matter. i think judge koser made this pot,hich is you can have a thatener. it still violates the rs amendment even if the recipient fails to comply. >> thank you. chief justice roberts: justice barrett. >> pickingp on justice kavanaugh's question, what mak something threatening and is it someininherent on the person on the other end of the line ina government official. bantam books points out athe speech, the threat, the encouragement, whawean posit from this purpose comes from someone with the authority to impose aanion. is that important in your view? mr. aguinaga: it isn't. we think it is a relanfact that if someone like an fbi agent that is meeting regurl with the platforms is making

these kinds of reques,hat is a fact you have to take into consideration. justice sotomayor has a procuring panedesion in the second circuit that addressed this issue about authority, and the issue tt case was that the borough president of staten island did not have the authitto take down a particular billboard, but the court still said that the fact that the recipients out the borough president might be able to use whatever authorithead to cause trouble for the billboard or mayor, that was enough. if the speaker -- that is a critical ft u have to take into account because if it is someone that twitter does not know from adam making the request, they will just igre it. >> if it is somebody on the hill. you have people on theilwho don't have control over doj. or if it is a staffer t white house mentioning 230, or maybe that is what is in the platform's mi. but no authority to bring an antitrust suit or try to change

230 or advocate for changes. th doesn't matter? mr. aguinaga: what i would say is on the facts of this case, if you have the deputy assist into the president making tt nd of statement, he can't make that. >> let's call it something low-level. mr. aguinaga: two people below him, he can promulgate rulemaking, but they can engage in a process that is in itself punishment. imagine being on the receiving end for six months on end of flirty for six months on end. these kinds of emails. in some ways, it is adverse consequences that were threatened. >> authority can drop out. the point is if it comes from the government, and there may be a conceivable y e government could follow through in some sort of puti way, that is the relevant inquiry? mr. aguinaga: that is certainly one way you can look at the analysis, absolutely. chief justice roberts: justice jackson. >> my biggest concern is that