I was inside the Supreme Court on March 18, along with my co-plaintiffs, our lawyers, two of the Twitter Files journalists, Michael Shellenberger and Andrew Lowenthal, Representative Jim Jordan and Louisiana Governor Jeff Landry, for oral arguments in our case Murthy v. Missouri (formerly Missouri v. Biden) challenging government censorship on social media. I present here my observations and analysis.

The government’s opening argument attempted to characterize its behavior as friendly persuasion toward the social media companies, not overt coercion. Justice Thomas—famous before covid for not asking questions but now more vocal on the court—opened by asking whether a distinction between coercion vs. persuasion was the only way to think about this case. Were there any First Amendment cases in which state action was implicated without encouragement or coercion, e.g., simply through deep entanglements that may appear on the surface to be cooperative? He also asked what the constitutional basis was for “government speech” (hint: there is none). The government’s attorney had to admit that the court has not located government speech in any constitutional provision. The First Amendment is a restraint on the government, not on citizens. …

Returning to a theme he had introduced earlier, Thomas asked whether you can censor by agreeing with the platforms: “Let’s work together, we’re on the same team,” and so forth. The government’s counsel responded, “When the government persuades private partners that is not censorship.” But Thomas continued to press the point. What he was hinting at here, I believe, is the legal doctrine of joint participation, which prior cases have established. Even if, on the surface, there appears to be no coercion or pressure, cozy entanglements and enmeshments between public and private actors—even if cooperative—could implicate the private actors as state actors, thereby subject to the Constitution and the First Amendment.

Gorsuch asked another insightful question: is coordination of censorship easier with only a few concentrated social media companies? “We need to account for the possibility that this may make censorship easier.” In other words, the government establishes “relationships” and request portals—as they have done—with the big ones: Meta (Facebook and Instagram), X (formerly Twitter), Google (YouTube), Microsoft (LinkedIn), and one or two others and they have 99.9% of the social media space covered. This could also, by the way, incentivize the government to avoid antitrust efforts even when the companies engage in monopolistic practices against their competition (as when Amazon, Google, and Apple destroyed Parler).

Barrett then asked another keen question regarding the coercion/significant encouragement standard, which suggested to me that she understood the problem of entanglement and joint action. She posed the following hypothetical to the government’s lawyer: could Facebook voluntarily turn over its entire content moderation on a particular topic to the government? The government’s lawyer could only admit that this would constitute joint action.

This was, in my opinion, a very important moment in the hearing, which could have easily been overlooked. It clarified that even the interactions which appear voluntary and cooperative may also be constitutionally problematic. Furthermore, joint action, in which companies are implicated as state actors, could open them up to First Amendment liabilities as well. The companies will want to distance themselves from that risk by resisting the government’s demands more forcibly. An injunction could give them the necessary leverage against the government to do so.

I would add that that Barrett’s hypothetical was not really hypothetical: this is precisely what the social media companies did during Covid, whether under pressure or voluntarily: they handed over Covid censorship entirely to the CDC and the Office of the Surgeon General—entities that were very frequently wrong in their assessments and recommendations where the plaintiffs were right. As my co-plaintiff Jay Bhattacharya continues to point out: the government thus became the biggest spreader of misinformation during Covid.