Supreme Court watchers and free speech advocates watched oral arguments closely on March 18 as the justices questioned attorneys for both the U.S. government and the states of Missouri and Louisiana in the case of Murthy v. Missouri. The central issue in the case is whether social media platforms censored in response to government coercion, or if the government’s mere “encouragement” of censorship constitutes an unconstitutional interference in First Amendment rights.

The case came to the Supreme Court after a lower court in July issued a scathing decision that restrained the government from pressuring social media platforms to censor. In the more than 150-page opinion, the court cited repeated instances of members of the government directly pressuring social media companies to censor speech that conflicted with the Biden administration’s preferred narratives. In the Biden administration’s appeal to the Supreme Court, it argued the district court’s order could interfere with its legitimate speech and law enforcement activities.

The attorney supporting the injunction argued that a finding of coercion is too high a standard to prove the government interfered with free speech. In most cases, the targets of the censorship have no knowledge that the government seeks their censorship. Moreover, the social media platforms usually do not need to be coerced because it is in their interest to do the government a favor by advancing its narratives. The platforms often agree with the government’s censorship of right-wing speech anyway. The attorney further remarked, “And the third party, people like Jill Hines and—and Jim Hoft [two of the social media users who had their freedom of speech violated in this case], whose speech wishes to express the kinds of viewpoints that the White House is targeting, they never know that that’s happening behind the scenes.” Government censorship, he explained, hampered Hines’ and Hoft’s ability to engage in state-level political organization. When given a choice between pleasing the government or standing up for a user’s right to free speech, a social media platform has little incentive to side with its users.

At least one justice seems inclined to find censorship illegal even when the platform’s cooperation is voluntary.

JUSTICE ALITO: There are regular meetings. There is constant pestering of—of Facebook and some of the other platforms and they want to have regular meetings, and they suggest why don’t you—they suggest rules that should be applied and why don’t you tell us everything that you’re going to do so we can help you and we can look it over. And I thought: Wow, I cannot imagine federal officials taking that approach to the—the—the print media, our representatives over there. If you—if you did that to—to them, what do you think the reaction would be? And so I thought: You know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and it’s—to mix my metaphors, and it’s got these big clubs available—available to it, and so it’s treating Facebook and these other platforms like they’re subordinates. Would you do that to The—to The New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?

Justice Amy Coney Barrett made this cryptic remark, “Let’s say that you get doxed and so do numerous other members in [the] Louisiana state government. You’re doxed, and somebody is posting online about how people should really rally and do something about this. People should rally and you should be harmed, okay? The FBI sees these posts and calls the social media outlet, like X, Facebook, whatever, and says we really encourage you to take these down because these are significantly threatening and we see some people may be responding to them.”

Although posed as a hypothetical, it hardly is. The Biden administration famously withheld protection from conservative justices harassed in their homes by leftist protestors. Was she subtly chastising the government for failing to censor when online information harmed conservative justices? Or was she signaling her unconscious fear that a wrong decision could lead to more leftist intimidation of the Court’s members?

All three of the “liberal” justices expressed sympathy for the government’s argument that it simply exercised its own free speech rights in contacting the social media giants to seek changes in moderation and censorship decisions. Justice Ketanji Brown Jackson, in particular, expressed concern that any decision limiting the government’s influence over social media might “hamstring” the government.

In answer to that concern, the attorney supporting the injunction made this point:

… if the government thinks there’s false speech out there, the remedy for that is true speech. Nothing prohibits the government from going to that platform and saying we’ve seen a lot of false information about election activity and COVID and vaccines and the like. Nothing prohibits the government from saying here’s a list of everything we say is true, that is true in our view, and you should amplify our speech, and anytime that false speech arises, you should put our posts right there next to it saying this is the government’s view on this issue.

Left unsaid is the reason the government has come to rely on censorship to manage public opinion. The answer, of course, is that the public has lost faith in the government’s ability to be truthful.

Between the many government sponsored election hoaxes (such as the Russia collusion hoax and the Hunter Biden/Russian disinformation hoax), other hoaxes about Russia (such as the accusation that Russia destroyed its own pipeline and placed bounties on American soldiers), and the many lies and misinformation the government circulated about the pandemic (if you get the shot you can stop wearing a mask, the “15 Days to Slow the Spread” campaign put out by the White House in March 2020), Americans have come to see the government as a purveyor of misinformation, not a trusted speech referee.

It’s not at all certain that the votes exist to reinstate the injunction. It is likely, the government will continue pressuring platforms to help Joe Biden win the election. Chief Justice Roberts and Justices Neil Gorsuch and Barrett appear reluctant to sustain a broad, nationwide injunction against the government. But free speech advocates can take solace in the fact that the government was forced to publicly defend its censorship regime instead of continuing to operate in the shadows with impunity.