the oral argument is one hour and 45 minutes. chief justice rober: will hear argument first is morning, case 23411, murthy v. missouri. mr. fletcher. mr. fletcher: thank you. the government may not use corso threat tsuress speech but it

is entitled the speed for itself i informing, persuading or cricing private speakers. this case should be about the fundamental distinction between peuasion and coercion. this is not a typical student where a spkechallenges government actions affecting its own speech. two states and five diduals are trying to use this to -- with and about social media platforms. that problem has infected every part of the case. respondents don't have standing because they he t shown an imminent threat that the government will cause the platform to monitor your post in particular. a lowercase viewed a vast range of speech without asking whether it had anything to do th responses. the courts entered a universal injunction restricting speec about any content. even apart from the article three problem, that jution rests on two errors. the fifth circuit radically expanded the state action doctrine by holdg ncoercive indications like those cdc public health voice. and second, the strict missed a persuasion for coercion. it held athe fbi's communications were inherently arr because the fbi as a law enforcement agency. anit held the the white house has engaged in coercion because ud strong language. if this cot aches to reaffirm that government speech crosses the line intcocion

only if viewed objecve. and because no threats happened here, the courts should rers justicehos: mr. fletcher, is the coercion encouragement amork the only way to look at the case? mr. fletcher: one is the coercion inquiry. you can think of that as an pect of state action because private parties are compelled to t state actors. respondents in the lower codes courts have also proposed a different way. they suggested that even absent question the government speech encoag private action. justice thomas: just so i unrsnd your argument. do we normally apply state action doctrine in cases involving the government or prate parties?

mr. fletcher: both, i think. in some state action cases you are are alleging the beuse they are state actors. you see some suits like th. suits against the platforms or stanford 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 o government contracts are relationships like that. mr. fletcher, yeah, and it gets at the ft at it is unusual -- we think these phases should be viewed through bantam books ty fmework. 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 contueo refer back to government speech. for my edification, what is the constituon basis for government speech? mr. fleterthe court has said the government is entitled to speak for itlf it is not a right that comes from the first amendment. the government could not function if it could not express points of view. in walker, it was explaineth the government has to run a vaccination campaign. the court has not locad y specific constitutional provision. it is just part of democratic governance.

justice sotomayor: n u explain to me what exactly is the injuti doing? meaning, how is it affecting the government's ee? there are a lot of defendants. a t agencies. i know that our caseload says an injunction cnotell you to violate the law. the fifth circuit injunction is what is before us and it says to encoure significantly -- to coerce, that is a legal term, or encouraging you are questioning e aning and significance of "encouragement." let's just use to coerce social dia companies. to remove, to suppress, or reduce, including altering their

algorithms. how is that harmful to the government mr. fletcher: this court has stayedhenjunction, fortunately it is not harming the government now -- we don't say athe government can coerce private speakers. but the problem wi t fifth circuits injunction saying don't er or significantly encourage is that it comes a the end of 80 pages of lal analysis. the fbi would send communications to the platform saying, for your iortion it has come touattention at the following url's are being used by maligned foreign actors to spadhe disinformation on your platforms. doith it what you well. that, the fifth circuit held, is coervebecause the fbi is a powerful law enforcement agency. ifhenjunction was put into

ac the fbi would have to think hard about doing that. the crux of what they claim was coercion was what happened in july 2021 when the surgeon general, the white hou pss secretary and the president made statements criticizing the platforms actions. the idea itrbling that those classic bully pulpit exhortations, public statement are urging actors to behave in dierent ways might be deemed to violate the first amendnt if the injunction was to go into afctif the president or his press secretary or someone else wanted to talk to the public about other probmsike the circulation of antisemitic or

islamophobic content on ci platforms or national security issues all of those things could be done only under the shadow of the injunction and that comes around to the other point which is that this injunction is trely vague. i think having that vague injuncti wch -- with these contestable legal terms hang erhe heads of all of these government officials doing these thin ia problem. and when you are talking about entering the injunctions at the behest of two states and five individual users whose main complaints about the moderation of posts about covid-19 years ago, has not shown thaits reasonable to the government. it is not showing a threat of re injury.

justice alito: let me follow up on that. even if one of the plaintiffs ve standing, we are required to get to the merit so let me asyoabout ms. hein. as you mentioned, she must hav faced an imminent threat of future injury at the time when the complaint was filed. and that injury must be traceable tohections of the government. on the first part of that, imminent 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 imne threat of injury? mr. fletcher: we he t disputed that she suffered the injury stice alito: on traceability, it is a question of causatn. mr. fletcher: agreed. justice alito: the district court found that the injury was traceable toheovernment's actions. and the fifth circuit accepted that finding, reviewed it and acceptedt. that is two lower courts. weon't usually reverse the findings of fact that have been doed by two lower courts.

and you haven't attempd 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 cald birdseye view of traceability. they s t government is talking to the platforms a lot and the platforms are in 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. pages 19 to 21. i invite you to look at e pages in the record because often what you find is that they are citing moderation of their content that happened before th challenged 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' action was the motivating factor? mr. fletcher: i don't know the answer to that in all cases. i'rectant to make broad statements regarding the traceability stame. we are not disputing that. we are saying they havno 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 ngefore the government talked about that. ey had powerful business incentives to do that. this is another telling fact. in tseoadway good examples we talked abouon pages 19 to 21, some of them involved platforms like linkedin which

was not even the of the challenge. justice sotomayor: do you think there are any factual findings with respect to standing that we are required to give a review to? mrfletcher: i thi findings of historical fact, absolutely. e ea that pieces of content were moderated and the government me rtain statements. and if there had been findings th ctain posts were deleted, that would be a finding. there are not such findings. justice ga that is what i was getting at. are there findings -- mr. fletcher: i cannot give you a st because there are a lot of facts, but we agree historical factual finng 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 iue on redressability, whaisour view of the legal anrd the court should be applying? mr. fletcher: it has to be some showing that is likely to address the entry if the anrds were a little higher. got to make some showing that an injunction against the government will stop the atrms. justice gorsuch: in massachusetts vs. epa we said to some extent. mr. fletcher: here the concern is, are the platforms going to moderate my post and will they do it because of the government and will an injunction again the government stop facebook.

justice gorsuch: to some degree, is thaancceptable standard to the government? i want to know my rdick. i take lightly from lujan. i take to some extent from massachusetts vs. epa, and take the statement in larson that i don't have to agree on all of it. mr. fletcher: agreed. except theirs was about rising sea level, so to some extent it means it does not have to solve the obm but help it a little bit. justice gorsuch: do you agree with that standard -- toom extent -- that the injury could be remedietoome extent by an injunction. mr. fletcher: rrt, if they are likely to face moderation on 10 posts and the injunction against e vernment would make it eight, then no. justice gorsuch: ok. ipping back, the substantial motivating factor obviou means it does not have to be a proximate cause. mr. fletcher: agreed. >> 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 others, and i see that the white house and federal officialar repeatedly saying that facebook and the federal government should be partners, we are on the same team, oicls are demanding answers -- i want an answer, i want it right away. when they are unhappy, they curse them out. there are regular meetings. th constant pestering of facebook and other platforms and they want regular meetings and they suggest rul that should be applied so we can help you. and i look at that and thoug, w, i cannot imagine federal officials 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 t feral government has got section 230 and antitrust in its pocket and , to mix my taors, it has these big clubs available to it, so it is treating facebook and these other platforms like they are subordinates. would you do that to the "new yo times" or the "wall street journal" or the associatedre or any other big newspaper or re service. mr. fletcher: there is aot packed in there, and i want to give you a specific answer and then step ckut. spifally you mention demanding an answer and cursin them out. the only time that happens is in email about the president's own account. justice alito: ok,e ll put that aside. it is constant meeting constant answers, we want answers. we are 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? . fletcher: 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 an the first amendment principles but it is relevant to how iapplied here. this is a time when thousands of americans were still dying every week, and there was a hope that getting everyone vaccinated would stop the pandemic. and there was a concern that americans were getting their wsbout the vaccine from the platforms. and the platforms were promoting -- justice alito: i understand that, and going over the objectives were good, but they were ao tting their news from the print media on the broadcast media and the cable media and i cannot imagine the feral government doing that to them. but maybe that goes on behd the scenes. but it struck me as -- this is not what i understand the relationship to be. mr. fletcher: i think this is important because ha the

same reaction you do. the emails do look unusual. thid that there would be a back and fthetween the government and the media is not usual. of course we talked to plfos 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. the context for that is that these platforms were saying publicly, we want to help and we think we have the responsibility to give people accurate information, and we are doing everything we can do meet that goal. th ptnership language is not just coming from the white house. and the anger, most of it, when you read the emails, and i appria that you have, because you have to look at them in context. e ger is when officials think that the platforms are not being anarent about the scope of the problem. justice alito: let masyou

one more queio and then i'll stop, at least for now. you make a big point in your brief anyo oral reply that states do not have first amendment rights. are u ying that they may have a free-speech right but it comes from someplace else? do you think the federal government could prohibia governor or the top ranking public health official in a state from speaking to the residents? residents? mr. fletcher: no, and to be clear, we are not denying that eyave speech rights. we are saying that the governments speech rights, from the struurand not the first amendment rights. they are trying to litiga and represent the first amendment right on behalf of their citizens' to have. stice alito: do you think, on thanr point, i guess i

assumed, thought experienced press who regularly -- you said the anger was unusual. i was not entirely there on that from my own experience. mr. fletcher: i don't want to use "berate." i bet this has not been the first time that there has been profanity in the excngof communication between members of the government and membersf the press. justice alito: whenever they write something we don't like we can write themnday, why don't we be partners on the same team? mr. fletch: justice alito,

this is why i want to be careful. i'm acknowledging the reality that this haenand it may become a place. i'm not saying it is a good but ndamentally i'm saying the first amendment is an important protection against actual portion. but i think it is important to police not lying. this case shows the danger of allowing parties especially parties without real direct juries to come into court and challenge these regular back-and-forths. >> from the partner's point, that does strike me as unusual. . etcher: that is traceable. this is not the government where the platforms we sing, we 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 shades into coercion. this is an open door they are saying publicly, we want to do our part. we recognize we have the responsibili tbe a source of information.

we want to be a source of good information. on the white house calls a agree and that is a good point. justice coney barrett: mr. fletcher, whether or not that ultimately becomes a first amendment violation -- i preciate the coercion point in the governments first point with respect to the merit of this -- t'm interested in your view that the context does not "change the first amendment principles." i understood our fstmendment to require heightened scrutiny ofovnment restrictions of speech but not total prohibion when you're talking about a

coelling interest of the government to ensure that th public has accurate information in 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. eter: i'm not conceding that is the case. r sition is that there was no correction to begin with. >> you mentioned coercion repeatedly in terms of threats. could there alsoe ercion in 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 gornnt action. >> and hypothetically, would a threat or an inducement with respect to antitrust actions qualify as coercion? mr. fletcher: sure. justice gorsuch: would with respect to 230 qualify?

mr. fletch: e other one is harder. one is that these are execute branch officials. they cannot unilaterally enact 230. justice gorsuch: they have a power to influence that. wod at be enough to say bu if you do not do x, we are going change our position on section 230? mr. flch: 230 is 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 change in 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. fletcheri ink that one is much harder.

th is a statement that president biden made off-the-cuff. justice gorsuch: i'm t lking about the context, specific issues. could that, in se circumstances, an accusation by a government official, that unless you change your policy, you are responsible for killing people, could that be coercion? mr. fletcher: i don't want to say it is impossible. saying it dinohappen here. the president said this to the blic in the middle of a ndic, and three days later, he clarified. he said, i'm not saying facebook killing people. he said i'm saying tt ople that say this are. i'm not looking toolanyone accountable. i want everyone toooin the mirror and imagine what would happen if this misinformation was going to tiroved ones. i think it's clear that this is an excerpt asia and, not a threat. -- exultation, not a threat.

thanks, mr. fletcher. how are we supposed to evaluate that question and the level at which coercion kicks in? if you are trying to coerce or get a particular result out of a media outlet, is it ou to say if you don't do this, we will move your rorr's cubicle down the hall? how do you evaluate when it constitutes coercion? mrfletcher: i think bantam books has been the lodestar -- around the idea is it a threat or statement that a reasonle person would understand viewed objectively and in context as a threat of some adverse vement action. as to the cubicle question, i

don't know if there are some verse government actions that are so trivial that they don't count. in general, i think our position , there is something the government is saying that we will exeisgovernment power in some way unless you change your speech in some way, and it is reasonably undeto it as a 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 increases enough, it might be viewed as coercion. mr. fletcher: 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 not hesitate to do it.

and when they said no to the government, the government did not engage in retan. it engaged in more speech. thprident and others went to the bully pope it. bully pulpit. justice thomas: ba tmy point about coercion, couldn't yo censor someone or prevent other spch or speech by others by agreeing with the platforms as opposed to coercing the atforms? you just work together and say, look, we are right a ty are wrong. let's work together. we are on the same team. let's work togher to make sure this misinformation does not gain any flong. mr. flch: as long as the platforms are exercising their own independent judgment -- that is what the first amendment protects. justice thomas: you are sayi that the government cannot censor by coordinatingit private parties to exclude others' speech.

mr. flch: i'm saying when the government persuades a prive rty not to distribute or promote someone else's speech, that is not censorship, that is rsding a private party to do something a private party is lawfutoo. and there are a lot of context whe vernment officials can persuade private parties that -- cod not do directly. for example, after octob 7 universities were called on to do more abt tisemitic speech hate speech on campus. public officials could call for those changes. thgovernment can encourage parents to monitor their children's cell phone usage or inteetompanies. all of those are context where the government can persuade a private party to do something thprivate party is lawfully to do. saying your algorithms and the way you are presenting informiois causingar and

we think you should stop. justice thomas: you really don't see any difference between the government coordinating with t platforms to exclude others speech and persuadg e 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, m argument here would be that what happened is on the persuio side of the line. you do see the back and forth throughout the process saying no repeatedly when they disagree with what the government is asking them d i think that is telling you that what the first amendment protects, which is private speakers making independent judgment, maybinrmed by the government. justice thomas: there is no difference between the platforms meetinanworking out an arrangement not to permit certain speech and the platforms working with the government to do the exact same in there is no difference. mr. fletcher: if the platforms

entered intoomagreement among themselves, that might raise issues under different provisnsf the law. the modest point i'm makings just the government does not violate the first amendment when it persuades another speaker not to distribute ee to someone 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 oed juste ito: on the traceability-causation question, if the plaintiffs owhat the government's actions were a movang factor, it is not their obligati tshow that theyou not -- that the platforms would not have done what they did ret not t for what thgovernment did. it would be theefendant's obligation to show that. mr. fletcher: i'nosure the court has ever determined that

applies. in the context of traceability. i would say the court has been emphatic that when your injuries are attributable to individual independent choices by private actors, att is not traceable and our submission is that is wh happened here. justice alito: a less defendt friendly standard on the merits. it seems odd. one last question, really quickly, you have never argu 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 instcte. 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 inwe are on stronger ground when they say the vast majority of athey are talking about is covid-19. their burden is tohothey face an imminent threat. that is showing that the injuries will occur. to the extent they are censoring themselves, and the actual government caused harm, that is t ough. jutice sotomayor: if you go back tohe 90-day suspension, do we know exactly what was censor? mr. fletcher: i don't think we . justice sotomayor: i was looking for it, and i could not find it. mr. fletcher: i would go through the brief, pages 19 through 21. there are not loof specifics. when the dates are pvid, they don't line up.

the first example on pag19f the red brief, i think it is ms. hines, where she gets her retweet from robert f. kennedy, jr. is suppressebywitter. she does n s that governments statements happened between nuary and july of 2021 and the moderation of her retweet happedn april of 2023. arlater, after twitter had been sold and after it had abandoned s vid-19 policy. i think there is a traceability problem. jutice sotomayor: thank you. chief justice roberts: jti kagan? justice kagan: on the cores in question is there anything we ha to review on clear error? mr. fletcher: historical fact, this statement was made. it was not made if there were spif factual findings made. things like -- this was pressure or coercion,e ink those were characterizations. and the ultimate first amendnt

standard of was this viewed objectively in context, we think that is the overview. justice kagan: and on the past harm-future harm question, i take ith if no future harm, that is independently sufficient, is tharit? mr. eter: correct. justice kagan: would there be any difficulties with confining thholding to that if we were to find for you? mr. fletcher: ihi in some ways that is the eie way to 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 gorsh:n your view, 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. fletcherthcomplaint for the states is may 2022 and the individuals 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 atoeion, is it in your mind a relevant consideration that the industry is very nctrated and therefore coordination problems that otherwise mig b difficult with the media, which are ryiverse, might not be present in some cases? mr. fletcher: context matters.

in some ways, the fact tha these are very large corporations does agnsa finding of course and because they are sophisticated. i hesitate to say that it suggests you should change the first amendment standards. justice gorsuch: i'm not suggesting that. the night brief idust it might be a relevant factor there is such concentration that it makes coordination among private the government entities and private entities easier. did you disagree with that? mr. fletcher: i'nosure. whether i agree with that. the point is that for r purposes the constitutional line is between coercion and not portion. justice gorsuch: in these ntt specific inquiries we have discussed, you have pointed out one way in which concentration might make it less susceptible. doe have to account for the possibility as well, not being spif, it may make coercion's easier? mr. fletcher: if that wer true,

you would have to account for it . i think the concerns about concentration in the indtrgo more to the potential effects of course and if itapns versus whether or not portion happens. i get that. i'm sensitive to that. what i was trying towas 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 crcn does not encompassiificant encouragenor entanglement, and that it would be a mistake to so ncde because traditional everyday communications would be deem problematic. mr. fletcher: exactly right. and relay what the lower courts have done is go beyond the coercion test and openly say we are going to open up this state action encouragement door. that, i think, risks turning the about forms and oer interacting with the government

into state actors restricting their editiachoices. adverse government action. justice kavanaugh: on the "killing people," hypothetical or not hottical, but statement, that raises national security analogies i don't know what your experiences are if you are plugged into this, but it is obly not uncommon for government officials to protes an upcoming story on surveillance or detention li and say, if you run that, it is going to harm the war effort and put americans at risk. mr. fletcher: i cannot profess to havhapersonal experience about that. i know it has happened. i think that is an example of a valuable interan as long as it is on the persuasion side of the line. i think platforms want to know if thearpublishing a story and eyight put lives at risk. ey don't have to listen to the government.

justice vaugh: and to tack onto that, if you post the story, we will pure titrust 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:t sue in the complaint? justice kavanaugh: no, just in general, you are speaking on behalf of the united states. my experience is the united states and all of its stations have communications with the mea out things they don't like or don't want tseor complaining about factual inaccuracies. i would be interested in what you want to descri aut that. mr. fletcher: i think that is actly right. i won't profess ge you a comprehensive overview. we have looked at this carefly in the context of these injunctions. it cesnto a couple of different buckets. one is engagement on mte of public policy and i think that is what was going on here.

child and mentaleah, antisemitic speech and islamophobia language is on that line another is the national security space. th might want to use legally the bully pulpit. another is the national security space. the co is clear is there on the fbi providing these foreign maligned selected actors for the platforms to take acti i appropriate. there is also domestic law enforcement side of things and chd exploitation and things like that. the platforms are a vector in the sorts of activities, and the government communicates with them on things like that. there is also governme election issues. false statemen o times, saying "if the polls are closed rl don't bother to vote," in an effort to suppress the vote. ose sorts of things are of can sworn to the law enforcement entities. i think there is also the cdc's inraions involving providing advice -- by the way, we are seeing aotf this information

circulated on your platform that is not true or is misleading abousothing we 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: thank you. justice barrett: this is a question about the interplay betwn ntam books and state action generally. justice thomas, he was talking about the distinction between encouragement and coci. what if facebo said, you know what, we are partners. we are on the same team. this ia ce-in-a-lifetime pandemic. we think it would be most lpl for the public good for us to turn over our content moderation to you. that is not coercion.

it is voluntary on facebook's part, but would it be state action then? mr. fletcher: that starts to veer into the joint action or doing somethg gether where the government is doing things making decisions. it is not just advising the plfos. the rubric may well be ste action, but the rubric may be more found in the joint action cases then offer significant encouragen justice barrett: how do we consider the relationship between those things? because i agree with you, bantam books is about dranghe line 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 icframework is the right one. what advice do youave? mr. fletcher: if i were the court, i would want to be cautious about making too definitive pronouncements. i would say, here, what is

challenged is that the persuaonrovision of information and that when those are issued the mn rdstick will be bantam books, d e concern is, have you crossed the line from trying to persua t trying to threaten and bantam is the right way to draw the line. there are a lot of dfent briefs -- and many agree this is the right line, ts context. i think you can reserve and say it woulde different question if you're talking about the government and the platforms acting together and turning over operable control. ireally not the kind of issue here. justice barrett: and that is not alleged here. mr. fletcher: exactly right. yeah. ste barrett: you were pretty consistent with justice kagan, saying that we don't haveo review any of the district court's factuafiings. i just want to make sure that is gh because i'm thinking about things you talked about with justice alito, the interchange of the expletive we are getting mad, wt answers now -- a tt was actually about his own facebook

account. or there was another exchange at was actually about someone impersonating the presidt's 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 that kind of suppression would t be clear error? mr. fletcher: guid t mean to say there would not be clear error at o. -- at all. i just meant to say it would be findings for historical fact. and those do count but i think weoied out places where there are clearly erroneous. we might agree there that clear error applies but to the extent that the lower courts were suggti it that things were said were not said. justice rrt: in considering

traceability, you would say that ybthere are some things we would review for clear error , becae ey were erroneous -- assuming that you are right -- the erroneous conclusion depended partly on factual errors and partly on applications of facts. mr. fletcher: correct. thanks. justice jackn: did not perceive there to be such sharp distinction between blom and bantam books. the government seems to be arguing here that bantam books is the way to go and that blom is not the right test. i appreciate that blom uses significant encouragement, but i init says, the question is whether the government has provided such significant encouragement, either overt or covert, athe choice must in law be deemed that of the state. that it is suggesting in the same way that bantam boo i that it is really about coercion

as opposed to just encouragement. irong to think there is really not that much differee between the two? mr. fletcher: i d't think you are wrong there. i think we say that t way you should read significant language. it makes a big government's choice. you can viewhaas the flip side of the ciuicourts, of threats for bantam books. the lower courts and my ies on the others have really tried to turn that significant language into something quite different, into circumstances ere the government encourages in some colloquial sensey persuading something or advocating for something. and we do not think that these court state actionev said. justice jackn: ok, i understand that. and even if we have a world in whicsiificant encouragement is verboten, is there something diert to the government

providing information? i am a little worried about the respondents -- what i think cod be taken away from their ew, which is that in situations where the govnmt has information that may be unique to the governn's knowledge, but that it feels important for the public to have, that that somehow becomes prohibitive, if, as a result of this information, these companies decide they wi d something different with respect to content moderation. mr. fletcher: that is our big concern, and i think that what the lower courts found across the lin the fbi providing information about covert actions on platforms versus the cdc asking questionabt matters 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 cot.

government censorship has no place in our democracy. that is why is0,000 page record is stunning. as a fifth circuit put it, the record reveals unrelenting pressure by the government to coerce socl dia platforms to suppress the speech of millions of americans. the district court which analyzes records for a year described it as arguably the most massive attack against free speechn erican history including the censorship of renowned scientistoping in their areas of expertise. the governments levers of esre are and nothing much to the first amendment. behind closed doors the government watches t ptforms 24/7, it abuses them with profanity, it warns that the highest levels of the white house are concneand it ominously says the white house is considering its options and it accuses platforms of plin

ball and hiding the ball. all to censor more speech. under this onslaught, the platforms roiny cave. last month, the platforms told you it isn't -- incredibly important that the platform crteheir own content moderationoly, but this record shows they continuously depart from those policies because of unrelenting government pressure. febook recently disclosed in an internal email to a form u.k. deputy prime minister, the reon facebook did that was because we were under pressure by thedmistration. we should not have done it. now, my friend says all of this is constitutional because the government has theig to persuade using the bully pulpit. but the governme has no right to persuade platforms to violate americans constitutional rights. and prsung platforms in back rooms shielded from public view is not using the bully pulpit at all. th ijust being a bully. i welcome the court's questions. justice thomas: counsel, kw your argument is a bantam books argument, but do you need

coercion in order -- you think that is the lyay 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? mr. aguiñaga: your honor, we do not need coercion as a theory. that is why we ld th encouragement in our red brief. inorwood, the court or the government cannot induce, courage, and promote private actors to do directly what the gornnt cannot itself do directly. that is the principle guiding here. regardless of the means that the government tries to use to pressure t ptforms to commit censorship against third parties, the constitution does not carebo that. it is the fact that what the government is trying to accomplish is the suppression of speech i was there, your honor, that is exactly how you address this question at bantam books.

did the government set out to deliberately suppress speech? the answer in that case was s , d at is the answer in this case here. wod say when this court considered bantam books, one of the key things about the analysis was that itasn obscenity case. the court struggled with whether the state has the right to police the line between legitimate speech and illetite speech. and that is why you're talking about coercion in that case. you are asking -- juice sotomayor: i'm sorry, the reason we werasng about coercion because the private parties could have chosen on theiowto censor that speech. they could have said, we think it is obscene, and i will be involved in this. the only issue became wh tt 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 ca is that the government cannot do indirectly what i prohibited from doing directly. and that is what you see happening inanm books and in a case like this. time and again there were times when the social media platforms had polihat did not go far enough in censoring the speech that the government wanted censor it. justice barrett: whetherr t heovernment can do this -- and this is something i took up with mr. fletcher -- it depends on the applicioof our first amendment jurisprudence and there may be circumstances in whh e government could prohibit certain speech on the internet or heise. you disagree about we would have to apply strict scrutiny andermine whether or not there is a compelling interest in how 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 someffect on speech necessarily becomes a first amendment violation, correct? mraguiñaga: not necesri, your honor. has a government set out to abridge the freedom of speech? in this case, you seehatime and time again. justice jackson: this inot a test for first amendment violations. mr. aguiñaga: this is the first amendment, right? justice 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

litigad. thqution in this case is whhethe government itself -- justice jackson:justicjason: it is collusion, it is a state action, right? that is the question in this case. mr. aguiñaga: i would encourage the courts to view this the way you did bantam books. used that term four times in nt books. juice sotomayor: encouraged to suppress their own speech. so, like justice kavanaugh, i veome experience enuraging. [laughter] u st wrote a bad editorial. here are the five reasons you should notrite another one. you just wrote a story that ll with factual errors. here are the 10 reasons you shld not do it again. this happens thousands of tis a day. mr. aguiñaga:n the modeling

caseo're describing to make a vein of the government going after the speaker thsees and 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 diovy. when the deputy assistant to the president sends emails of facebookr twitter and complained that they are not doing enough to ceorith a view as vaccine hesitancy speech, the third party, people like jill hines and jim hoff, whose of speech the white house is starting,henever know that is happening behind the scenes, and i tnk it makes a difference, justice kagan, that you have an intermediate who has no incentive to defend jim half's speech l hines' speech. >> what about abe? mr. aguiñaga: -- op-ed? mr. aguiñaga:

if the newspaper declineso run on op-ed, that author can go tony number of publications and have an outlet. it is not the same here beus if i am on twitter and i wish to express a viewpoint athe government wishes to censor and twitter bows to th pssure -- >> i was just going to say first, i h experience coercing anybody. [laughter] co, the government is not monolithic either. suspect when there is pressure put on the platforms or one of the other media outlets, they got people they go to obly in the government to say, they are trying to get meo this, and that person may disagree with what the government is trying to do. it is not monolithic and that has to dilute e ncept of coercion significantly, doesn't it? mr. aguinaga: i am not sure i agree with that. i gus would get back to one of the earlier points that whetr u call this coercion or encouragement, promotion, inducement, whatever it is, if

thgovernment is attempting to abridge the speech rights of a third party, that s be unconstitutional because it falls within the plaintext text of the third amendnt this is bantam books of the 21st century. you haven't had a case with social media platforms like this where a third-party's speech is so at risk. >> how dyoanalyze a situation where maybe epa is trying to coerce the platform about something and the army corps of engineers is trying to erce them the other way? you can't pick and choe ich part of the government you are concerned about. viously, it is different when you're talking about what the esident is saying in particular, but other than that, i think ia more fluid situation than anything else. mr. agna: that is fluid, your honor, but as we have plaintiffs in isase who wish to express certain viewpoints that have been spefilly targeted by the government, it is not at least fluid in these facts.

this is not a case about covid, its about election integrity, it is a case that the court has ouing about -- >> what about that? take an example where tse platforms, they are compilers of speech. let's call it part of law enforcement says you may not realize it but you a hting a lot of terrorists speech, which is goi tincrease the chances that there is going to be some terrible hm at is going to take place, and we want to give you isnformation, we want to try to persuade you to take it down. the government can't do that? . aguinaga: the government can absolutely do that. >> you areskg them to take down the speech. mr. aguinaga: terrorist activity, criminal activity, that is not protected speech. absolutely, the government can inform -- >> terrorists engage in things atome under the first amendment.

t's say they are just recruiting people for thr organizations. mr. aguinaga: your hon, it is first amendment speech, protected speech, i inwe are 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 diinishing between whether it was domestic or foreign conduct. thway this issue arises is maybe you have a foreign act who tweets "i love biden" d there are 20 million people who wish to retweet that, restt with their own comment saying, i love biden too. when an american does that, that is first amendment protected speech. when the governmt mes in and tries to take down every single post that contnshe core that they say was foreign speech they are also taking down the added spee bamericans. that is where the first amendment issue is.

>>ack when this happened, decades ago it happened all the time, which is somebodfr the white house got in touch with someone from the washington post and said, this wilha national sury, and the washington post said, ok, whatever you say. we didn't know enough, but that was coercion? mr. uiga: 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 intest maybe the government can satisfy circuit scrutiny in tt circumstance. we would not have a lawsuit based on that because i don't know how we get perspective based on reach o fm the white house. >> what i am trying to suggest is there are all kinds of things that can appr these platforms that do all kinds of different rm and the inability of government that you are suggesting to reach out to its platforms and say, we want

to give u formation 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 in it would be a good thing if you, on your own, chose to take this speech down. >> if those were the facts in thease, it would be a much harder case for me. >> i don't know what your standa i you just told me that was good enough for you. mr. aguinaga: no, your honor, because in that ciumance you have a platform who is reaching out, or the governme rching out to identify what it views as the right state of the law the government, this crtas made clear for a while, since its plurality inn in alvarez, if there is full -- false speech, the reality is true speh.

nothing prohibits t gernment from going to that platform an saying, we have seen a lot of fae formation about election activity and covid and vaccines and the like. nothing prohibits the government omroviding a list that says, this is what we say is true d you should amplify our speech, d you should put our posts right next to it saying this is the government's ewn this issue. the problem here, and i think you see this in the summer of 2021 after the white house goes nuclear on the plaor is that the platforms thsees reverse 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 primeinter of the u.k., anafr all this pressure for months and months, heen this email to the surgeon general and says, than r taking the time to meet. i wanted to make sure you saw the steps we took this past week

to adjust poliesn what we are moving, to take steps to further drs the info. we havreved 39 profiles, pages, groups, instagram accots we are continuing to make other accounts hard to find. th ian example of other platforms moving beyond what their policies require bau they felt pressured to take more action and sensor more speech. if that is not the cart example of the government -- >> point to me where you have in the record te 39 accounts that were taken out were related to any of e titioners here? mr. aguinaga: sure. >> and give me that cite again. mr. aguinaga: roa 1522, and at that email mentions is the so-called disinformation den this is a group of people the government thought was responsible for the majority of paragraph so-called five misinformation on social

media. in parras five and six of each of the supplemental backecrations in the joint members appendixea of our individual plaintiffs specifically identifies th facts that they follow members of the so-called disinrmion dozen, they repost their post, they engage with their speh. so, when the platforms in response to the prsu are taking down content and accounts related to those individuals and call it the dinfmation 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. mragnaga: that is what i was quoting right now. >> i don't think we have ever entanding on the basis of injury to another. injury to you but not to another. mr. aguinaga: let me ge u jill hines one more time. this is a screenshot of a tweet mr. fletcher mentioned.

this is censorship four times over because this is a tweet, and apri20 is on the eve of the preliminary iunion hearing. what she says is this facebook post i posted was taken down by facebook. she got a warning for it as a violation of community standards. what was that post? it was a screehoof robert f. kennedy, jr., a member of the so-called siormation dozen. the tweet was talking about tuck clson, who the administration was obsessed with. >> i'm sorry, the rfk tweet, there is only a record of the whe house asking twitter to reve a tweet, and not particularly this one from rfk. that does not help hines' claim that the white hou aed facebook to remove anything. mr. aguinaga: it ds, your honor, and this is a good

examplofhe interrelationship between the various media platforms. you ha cssposting. what happened in this example, jillin took a 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 goi t describe that tweet. heas talking about tucker carlson, who the white house rgeted in the joint appendix. >> i have such a problem with your brief, counselor. you omit information that changes the context of some of your claims. you attribute things to people who it didn't happen too, at leasinne of the defendants. it was her brother that sothg happened to, not her. d't know what to make of all this. because -- i am not sure how we get to prove direct injury in any way. mr. aguinaga: justice sotoyor, let me start by apologizing if any aspect of our brief was not

as forthcoming as it should have been. i take full respsility for 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 sen multiple ways. one of the ways you look at her standing is you look at ja715 to 71 this is an email to facebook, where the white house specifically asks facebook to not distribute so-called vaccine hesitancy content, and also to target health groups that do that. that is ja715 to 716. you go earero ja631. thiss ll hines' allegations. what she says is two month later, the white house email i described was in may, two months later in july and later in september, 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 whaist stake here, which is those groups were political acti gups. louisiana had a legislative ssn in progress. what jill hines was trying tdo wamobilize people to support certain bills and other legislative materials that were then pending in the state legislature. because the government put them on the scales a up months before, and lo and behold once jill hines teso use the groups that the government targeted, e n't. they are pulled down. her political orgazaon is stymied. that is all ov t record, and that is one fraction of the kinds of harm that is at stake here. >> ask you -- i want to go back to the interchange with ice kagan about the standards because i have to confs at it left me very confused. itounded like you were articulating different standards, different legal standard, depeinon different factual circumstances.

for example, when justice kagan gave you the hypothetical of pressure being placed on the new yorkim or washington post not to run a particular op-ed, seemed like you backed off and said significant encouragement would not be enough because the pplwho wrote the op-ed would go to another news outlet. you made the point that this is different becaussoal media is such a concentrated industry, which is a poi tt just as gorsuch was asking mr. fletcher about. can you clary at? did i misunderstand? because it seems to me that as a matterf w, the same legal standard would have to apply across all these areas. mr. aguinaga: i think that is right, and i apologize if i wasn't clear earlier. the top line legal standari would start with is 635 in norwood, the court cannot do indirectly what is prohibited from doingirtly. the second line in response to that is, what sorts of indirec mechanisms can the government use that would run afoul oth rule? one particular mechasms coercion, another is encouragement. this court has also used --

>> encourageme, does it 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 amdmt purist, but we don't edhat to win in this case because we are so far afieldf whatever that threshold is. if you want to say substantial encouragement like the fifth circuit said, absolutely, that is a standard that works. >> let me just ask you, let me give you a hypothetical. let me sayouet doxed and so do numerous other members in the louisianste government. somee posting online about how people should really rally andoomething about this. people should rally and you ould be harmed. the fbi sees these pos a calls the social media outlet, x, facebook, whateve a says, we really encoure u to take

these down because these are significantly threatening and we see some people may be respondi tthem. mr. aguinaga: my first question is wheth tt would be protected speech. >> let's assume that everything that is said -- i was trying to make it short of actually being ilga your mr. aguinaga: as i say, i am a purist on the first amendmt,o my answer 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 absolutelyandentify certain troubling situations and let the platforms take action. the hypos are very important, buwhen you look at what is happening in this case, what they are doing, theris no 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 doesyour honor.

what wld say in response to that, and i am sensitive given thhypo to the outcome, but what the fbi is doing is trying to persuade a speech intermediary to keown a 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 diffen factual circumstances is because you are not focusingn e fact that there are times in which that the governmenca depending on the circumstances, encourage,erps even coerce, because eyave a compelling interest in doing so. that is y keep coming back to the underlying first amendment issue, which we can isolate in this case and talk about coercion. t think you have to admit that there are certain

circumstances in which the government can provide information, encourage the platforms to te down, tell them to take it down. what about the hypo of someone posting clsied information? they sayt my free speech rights, i got access to this inrmion, and i want to post it. are you suggesting the gornnt couldn't say to the platforms, we need to take that down? >> no, your honor, because i ink that would be a great example where strict scrutiny would be in the government's favor. >> what do we do a suaon in which -- i guess ith case we are asking -- the government's point is we dinocoerce, and i appreciate the debate about that. but you just seemed to suggest thats blanket matter the government doesn't have the ily to encourage or require this kind of censorship. and i don't know that's the case. mr. aguinaga: your honor, i guess this goes to theul

pulpit as well. as i understand it, e lly pulpit has never been used to target the object of suppressing a third party'spch. you can use it to coerce behavior, to course companies to take certa aion, but when a government is identifying a certain viewpoint and content it wish teliminate from public discourse, that is when the first amendment problem aris. i am struggling to find an example in the court's cases or history where the couror anybody else has said the government by virtue of being the government can use its power to pressure its speech intermediary is eliminate entire viewpoints and content from the public discour >> can i give you a hypothetical? mr. aguinaga: sure. >> suppose somebody started posting about a new teen challength involves teens jumping out of windows at crsing elevation. this is the challenge. d kids all over the country start doing this. there is an epidemic.

children are seriously injuring or even killing themselves in situations. is it your view that the government authorities could not declare the rcumstances a public emergency and encourage social media platforms to take down the information that is iniging this problem? mr. aguinaga: the government absolutely can use the pulpit to say publicly, here is what we recognize to be a publiceah issue emergency. obviously it is extremely terrible and the public should not toletehis. we see this going on in the platforms. >> but they cannot call the platforms and say, we think you should be taking this down because look at the problems it is causing? mr. aguinaga: if it is proct speech, we are getting closer. but if that is clearly the way you are asking the question, i understand the instinct that that may not be a first amendment su i guess what i fall back on is at least where the government itself, there is no emergency -- mhypothetical is there is

anmergency, and i guess i am asking you in that circumstance, can the government call the platforms and say, this information you e tting up on your platform is creating a serioupuic health emergency, we are encouraging you to take it down? >> i was with you until at last comment. i think they can call and say, this is a problem,t rampant on your platforms. but the moment the government tries to use its ability as the government and its stature as the vement to pressure them to take it down, that is when yoarinterfering with third-party speech -- >> go ahead, finish. mr. aguinaga: the third party is absent from the conversation. the third party whosspch is being censored is absent from this discussion. >> 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 ghhave a harder case saying that is coercion. i think by its definition, it is easier addressed as a substantial coagement case. but whether it is encouragement or jntarticipation and conspiracy, at the end of the da if what the government is trying to do is eliminate viewpoints from public discourse -- >> again, under my colleague's hypothetical, it was not necessarily to eliminate viewpoints, it waso iminate instructions abo h to engage in some game that is seriously harming children around the countr and they say, we encourage you totothat. that violates the constitution? mr. aguinaga: i agree thats policy matter, it might be great for the government to beblto do that, but the moment the government identifies an entire category of content it wishes

not to be in the public sphere, that is a first amendment problem. >> thank you. justice thomas? justice 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 dede in this case. so, i thought your princip argument was that whatev coercion means is ffient and coercion doesn't apply only when the government says, do this and if you don't do this, there will be legal consequences, when it says that in the same breath. but it is a more flexible standard, and yoha to take into account the whole course of the relationship regarding this

matter. that is at took to be your principal argument. did i understand that correctly? >> that is correct, your honor we've got 20,000 pages in this cord of the government persist -- persistently going back to platforms time and time again, pushing them to adjust the policies, do more censoring. i think that is what makes this case so unique iyohave this fast repetition of communicatio, t it is all, the bulk of it, is behind closed doors. that is what is so pernicious about this. wdon't have a remedy in this case, it is hard to see how ere will ever be a remedy for a future plaintiff who tur o to be censored 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 bacto the standing question? if i a y for the single piece of evidence, and maybe

this is the piece that you were dering earlier. i want to make clear what your answer is. the single piece of eviden at most clearly shows that the vernment was responsible for one of your clients having material taken down. what is that evidence? and what does it say about how the government was responsible? mr. aguina: re, your honor. i think jill hines is the best example ontaing. >> even on that one, i didn't undersndhat you were saying, hoyodrew the link to the government. we know there's a lot of government encouragementrod here. we also know that e atforms are actively content moderating, and they are doing that irrespective of what the government wants. so, how doouecide it is government action as opposed to platformctn? mr. aguinaga: your honor, let me

answerouquestion directly. thli i was drawing was a temporal one. o nths after the email, lls for targeting health groups like jill hines' group, she experiences the first example of that. >> in two months, a lot of things 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 longin forgotten because there are 1000 other counations that platform plees have had with each other, 1000 other things that platform employees have read in the newspaper. why would we poi tone email two monthsarer and say 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 betweenhe platform and the government. >> but if it is encouragement -- let's even take that this was something that the government was continually esng, encouraging. encouraging the platforms to do. until you can show that there is something about overbearing e atform's will -- it seems sort of hard to over bear facebook's will, from what i cagaer 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 commicions arise, the facebook emails are attempting, they used terms like partner. ey try to work with the government.

you could say the same thing about how u ow it is 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 gornnt is making some broad statements about the kinds ofomnications it thinks are harmful. facebook has a lot of opinio onts own about various kinds of communications it think harmful. if you're going to use standard ideas about traceability and redressability, d't see a single item inoubriefs that 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 gatey pundits specifically appear in the tracking spadsheet that the fbi uses. we also know that the eip, the

election integrity partnership, this report found it a million times. it looks like they have 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 besexple on traceability. how about redressability by the time it came arndwe are in 2023. mr. aguinaga: we had two supplemental declarations at the end of the joi aendix from jim hoftndill hines that identify the specific posts they have posted on twitter and fabook during the pending preliminary injunction proceedings. e of the ones we talked about was ja793 and 794, whi ithe jill hines facebook posts referencing k,eferencing tucker carlson, referencing

vaccines. it turtles all the way down. all tse are examples of injuries that postdate a lot o the earlier filings in this ca. when you talk about that, th is in order to the governmt knock continue in the sos censorship that leads to these kinds of censorship decisions. >> i would like tk briefly about remedy. this is anotr ample of a universal injunction, and the distri crt enjoined behaviors and actions to parties not affecting your client. we have seen an epidemic o these lately. what do we do about it? mr. aguinaga: a couple of responses to tt. one of the rsothe breadth of the injunction is what it is is what was elaed in ja81 to 83. the breadth of the government's enterpri w extreme they

-- extremely broad. i spoke with justice kagan about whether or not you can identify th calling out jill hines specifically. e ason it is 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 that claim true, then having the platforms go out and since her -- sensor contrary claims. the as you see the breadth of the injunction, it is a product of what the government did. >> every universal injunction se, but your clients are your clients. they are the only es complaining. it is their setheir controversy. normally o redies are 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 toimit the injunction to the five platforms in which we were ab tget primary discovery. that is completely fine with us. if you want to limit to the seven plaintiffs, also

completely fine. i think the most important take away is the courhato say something in our favor. the government cannot just run rampant pressuring the platforms to since her public speech. chief justice roberts: justice kavanaugh. >> on bantam books, i read that to refer to coercion and not significant encouragement. mr. aguinaga: i think that is right, although if you look at page 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 wedd tany label, but i agree the word encouragement does not appear in bantam books, your honor. >> and one thing i want to sqrep with you is if someone calls and contacts a social media company and sayshayou have there, this post has

factually ernes information. so not a viewpoint that we digr with, factually erroneous information, and the social media company says,e will take a look at that, and you still think th i significant encouragement that qualieas coercion if they take it down in response to concluding that is in fact only factually erroneous? mr. aguinaga: if it is the governme saying this is our view of the statement -- >> we think it sulbe taken down. it is up to you, but we think it shld be taken down. mr. aguinaga: i think that ia harder case for me. if you think it is a clo ce -- >> what about the first amendment? that is the question here. you cannot just clm e mantle. when you say it is a harder case, why do you think it is a harder case? mr. aguinaga: because i undersndhe instinct that asking very politely or saying

very politely we think you should take it down, that that should not be a first amendment problem. the reality is when someone like the fbi or deputy assistant to the president mas statement like that, that statement carriefoe. that is ju t reality. my dear mother is a saint and if shmas the same statement to twitter, they don't know her from adam. >> why is that? is it your assumption th anyone in the circumstances are always implicitly thating adverse consequences? mr. aguinaga: no, your honor. this is eri think bantam books is good for us. you look at the substance ofhe mmunication and say, what is the government doing here? is it trying to suppress third-party ee? >> the hypo was about factually inaccurate mr. aguinaga: right, factually inaccurate information, and if the government says our view o that is that it is false, they n absolutely say that.

but if they do more and say, you need to take it down -- >> you should taket wn. mr. aguinaga: you should take it down, that is a first amendment issue. >> somethi ftually 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. uiga: the north star for the government in that situation is the true speech should counter what they think isal speech. the government is not helpless. it has tools at its disposal and censorship hasev been the 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 point, which is you can have a threatener.

it still violas e first amendment even if the recipient fails to comply. >> thank you. chief justice roberts: justice barrett. >>icking up on justice kavanaugh's question, atakes something threatening and is it mething inherent on the person on the other end of the line being a government official. bantam books pois t that the speech, the threat, the encouragemt,hat we can posit from this purpose comes from someone with the authority to po a sanction. is that important in your view? mr. aguinaga: it isn't. we think it aelevant fact that if someone like an fbi agent that is meetg gularly with the platforms is making these kinds ruests, that is a fact you have to take into consideration. justice sotomayor has a procurg nel decision in the second circuit that addressed this issue about authority, and thise in that case was that the borough president of staten

island did not have the thority to take down a particular billboard, buth court still said that the fact that the recies thought the borough president might be able to use whatever thity he had to cause trouble for the billboard or mayor, that was enough. if the speaker -- that is a cric fact you have to take into account because if it is someone that twitter does t know from adam making the request, they willusignore it. >> if it is somebody on the hill. you have peoplonhe hill who don't have control over doj. or if it is a afr in the white house mentioning 230, or maybe that is what is in the platform'mind. but no authority to bring an antitrust suit or try to change 230 or advocate for changes. that 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 ki that kind

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 tt re threatened. >> authority can dp t. the point is if it comes from the government, and there may be a concvae way the government could follow through in some so opunitive way, that is the relevant inquiry? mr. aguinaga: that is certaiy one way you can look at the analysis, absolutely. chief justice roberts: justice jackson. >> my biggest concern is that your view has the first amendment hamstringing the government in substantial ways, in the most important time periods. what would you have the government do -i have heard you-say a up times that the

government can post its own spchbut in my experience, -- in my hypothetical, kids, this is not safe, don't do it, its not going to get it done. i guess someig say that the government actually has a duty to te eps to protect the citizens of this country, and you seem to be suggesting th that duty cannot manift self in the government encouraging or even pressuring plfos to take down harml formation. so, can u lp me? because i am really worried abt that because you've got the first amendment operatg an environment of threatening rcumstances from the government's perspeiv and you are saying the government can't interact with the source of those problems. mr. aguinaga: unrstand, and what i would tell you is our posions not that the government can't interact with the platfos. they can and they should in

certain circumstances, when it presents dangerous issues fo society. and especially young people. but the way they do that has to be in compliance with e rst amendment, and i think that means they can give emll the true information the platform needs and ask to amplify that. >> i guess i thought when you say the way they dth is consistent with the first amendment is thath have to show they have a compelling interest to wt they are doing. in other words, you want us to take t le to be between compulsion and encouragement, and what we are looking at is thgornment cannot compel, maybe they can encourage. i am wondering if that is not rely the line. the line is, does the government pursuant to the firsamdment have a compelling interest in doing things that result in restricting the ee in this way? that test, i think, takes into account althe different circumstances, that we don't really care as much about how much t gernment is

compelling, or maybe we do, but inheontext of tailoring and not as a freestanding inquiry th is overlaid on all of this. does that make sense? mr. aguinaga: it does, your honor, and i apologize for missing your guidanceaier. the way i think abouits i have been discussing the standard on the frt d of the analysis, which is, is there a first amendmenviation? i would conceptually think of strict scrutiny as coming into the backd d saying, maybe in an oiny case the government should not have been permitted tondertake the kind of suression of free speech that it did, but in this unique circumstance, it had a compelling interest and used narrowly tailored means to complish that interest. i think that is the failsafe. if you are concerned with the breath of our arguments, that is one failsafe, that no matter how broad the court adopts, there will be strict scruty at the end of the line to save the government in times where it desperately needs to do the things you are outlining. chief justice roberts: thank yonsel.

rebuttal, mr. fletcher. mr. fletcher: thank you, mr. chief justice. i would like to start with a few points, enddress the merits, then step back and talk about the bigger picture. thfit on standing, i have to arwith a clarification about jill hines' emails, pages93o 794. misunderstood what my friend luded to earlier. i thought that was twitter, not facebook. i appreciate his clarification. because we have been insistent, i wanted to keure i did that, too. i do not think that changes the fundamental point because we are talkinabt an act of moderation in april 2023 years after the last white house or any government speech targeting mr. kennedy's content, which happened in 2021. justice kagan pointed out the issue, which is eyre trying to draw a line between the governments acts and the moderation that harmed them roh timing, and the timing is not very good. i want to talk abo t two best examples he gave you, the one being ms. hines' ou

justice kagan, you pointed out r oups were moderated two and four months after the relevant exchange betwee facebook and the government, but it is actually worse than that. the may 2021 email from facebook to the govnmt says, we have already taken action on health groups, removed them from our recommenti feature. it was not reporting on something that would be done in e ture, it was reporting on something that was already don and it was not clear facebook was doing that froanrequest fr the government. his next best example is mr. hoft and the example on spreadsheet that the sisa agency maintains. the problem with that is twofold. first, this is araing spreadsheet that monitors information sends from election officials to the platforms. this shows theept was made by the election integrity partnershi arivate entity. it was not referred to the state

by sisa. sisa was jt ting the existence of the referral. as far ai aware, there is no indication that the refenc piece of content was taken down at all. i think that points out what they have not shown as injury traceable to the governmen l alone imminent risk of future injury. second, on the merits, i think it is instructive to start with what my friend calleonof the hottest documents, 13322, the exchange betweenheurgeon general and someone at facebook. this is comi ithat critical july 2021 period. what starts that exchange is not an a cce about the private email changes, something that happedehind closed doors. its cebook reaching out and saying, we wanted to get in touch because of the president's statements, the referenceso killing people, and the health advisory on what platforms could be doing to do more, along with others in society. i think without highlights is to the extent the govnmt has influence on the governments

here, and we acknowledge there are inditis that it did, theiinuence of the classic bully pulpit, of president bus coemning pornography, president roosevelt condemning muckrakers, presidentsndheir close advisers have the way authority to an un-non-w speak their mind and call on the public to act, and we thinth is what s ppening here. finally, if i could step back. myrid started by saying this is a massive attack on free speech. thlower courts called it a coordinated censorship campan. want to be clear, if those things had happened, it wod reprehensible. it would be a huge problem but we would think before lidating those kinds of charges against senior government officials and career employees, the lower courts would insist on rigous analysis of the facts, and with all respect to t ler courts, we don't think that has happened here. we think the easiest way for the court to resolve this case is on

standing, on the lack of injury grnd you and i discussed earlier to the extent the court does get the merits, we urge you to make clear that government fials do not violate the first amendment when theflged 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 government -- the way the president did. it is also important that the courts stay thin the bounds of article three. we ask you to reverse. chief justice roberts: thank you, counsel. the case is submitted.