the oral argument is one hour d inutes.

hear argument first this morning, case 23411, murthy v. missouri. mr. fletcher. mr. fletcher: thank you. the government may not use corso e speed for itself i informing, persuading or criticizing private speakers. this case should be about the fundamental distinction between persuasion and coercion. this is not a typical student where a speaker challenges government actions affecting its own speech. two states and five individuals 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 have not shown an imminent threat at 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 with responses. the courts entered a universal,h about any content. even apart from the article three problem, that injunction rests on two errors. the fifth circuit radically expanded the state action doctrine by holding noncoercive indications like those cdc public health voice. and second, the district missed

a persuasion for coercion. it held that the fbi's communications were inherently coarser because the fbi as a law enforcement agency. and it held the the white house has engaged in coercion because it used strong language. if this court reaches to reaffirm that government speech se only if viewed objectively. and because no threats happened here, the courts should reverse. justice thomas: mr. fletcher, is the coercion encouragement framework the only way to look at the case? mr. fletcher: one is the coercion inquiry. you can think of that as an aspect of state action because private parties are compelled to act as state actors. respondents in the lower codes

different way. they suggested that even absent question the government speech encourages private action. justice thomas: just so i understand your argument. do we normally apply state action doctrine in cases involving the government or private parties? mr. fletcher: both, i think. in some state action cases youhe because they are state actors. you see some suits like that. suits against the platforms or the government. justice thomas: are there any first amendment cases? employing state action? often, and suing the government. things like medicare or government contracts are relationships like that.

mr. fletcher, yeah, and it gets at the fact that it is unusual -- we think these phases should be viewed through bantam books type framework. where there is a problem if the government stays on the side of coercion. if it stays on the persuasion side and we are talking about government speech and there is no state action. justice thomas: one final question. you continue to refer back to government speech. for my edification, what is the constitutional basis for government speech? mr. fletcher: the court has said the government is entitled to speak for itself. 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 explained that the government has tru vaccination campaign. the court has not located any specific constitutional provision. it is just part of democratic governance.

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

to remove, to suppress, or reduce, including altering their algorithms. how is that harmful to the government? mr. fletcher: this court has stayed the injunction, fortunately it is not harming the government now -- we don't say that the government can coerce private speakers. but the problem with the fifth circuits injunction saying don't coerce or significantlyage is tt the end of 80 pages of legal analysis. the fbi would se saying, for your information it has come to our attention at the following url's are being used by maligned foreign actors to spread the disinformation on your platforms. do with it what you well.■<

that, the fifth circuit held, is coercive, because the fbi is a powerful law enforcement agency. if the injunction was put into place, 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 house press secretary and the president made statements criticizing the platforms actions. the idea is troubling that those classic bully pulpit■5 exhortations, public statements are urging actors to behave in different ways might be deemed to violate the first amendment. if the injunction was to go into affect, if the president or his press secretary or someone else

about other problems like the circulation of antisemitic or islamophobic content on social 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 extremely vague. i think having that vague injunction which -- with these contestable legal terms hang over the heads of all of these government officials doing these things is a 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 that it is reasonable to the government. it is not showg a threat of future injury.

justice alito: let me follow up on that. even if one of the plaintiffs have standing, we are required to get to the merit so let me ask you about ms. hein. as you mentioned, she must have faced an imminent threat of future injury at the time when the complaint was filed. and that injury must be traceable to the actions 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 imminent threat of injury? mr. fletcher: we have not disputed that she suffered the injury. justice alito: on traceability, it is a question of causation. mr. fletcher: agreed.

justice alito: the district court found that the injury was traceable to the government's actions. and the fifth circuit accepted that finding, reviewed it and accepted it. that is two lower courts. we don't usually reverse the findings of fact that have been endorsed by two lower courts. and you haven't attempted to show that the finding was clearly erroneous. mr. fletcher: respectfully, justice alito, i disagree with that. the fifth circuit and district court applied too loose the notion of traceability.

they did what is called a birdseye view of traceability. they say the government is talking to the platforms a lotag moderation. justice alito: you think it is necessary to identify a single ? mr. fletcher: i think you have to trace some government action to some consequence. maybe i could be specific. pages 19 to 21.invite you to loe pages in the record because often what you find is that they are citing moderation of their content that happened before that challenged government actions to which they are referring or long after. justice alito: i have looked at that. on the issue of causation aret's action was the motivating factor? mr. fletcher: i don't know the answer to that in all cases. i'm reluctant to make broad statements regarding the traceability statement. we are not disputing that. we are saying they have not shown any causal connection. justice alito: no effect whatsoever. you think the lower courts were wrong about that. mr. fletcher: i think they were. it was a blunderbuss approach. the platforms were moderating

the content long before the government talked about that. they had powerful business incentives to do that. this is another telling fact. in those roadway good examples we talked about on pages 19 to 21, some of them involved platforms like linkedin which s not even the issue 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? mr. fletcher: i think findings the idea that pieces of content were moderated and the government made certain statements. and if there had been findings that certain posts were deleted, that would be a finding. there are not such findings. justicere findings --

mr. fletcher: i cannot give you a list because there are a lot of facts, but we agree historical factual findings count. what we say does not count our characterizations. findings about the application of laundered facts. standings. >> i want to nail down your view on legal issues.on redressabilir view of the legal standard the court should be applying?■q&n mr. fletcher: it has to be some showing that is likely to address the entry if the standards were a little higher. got to make some showing that an injunction against the government will stop the platforms.

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 against the government stop facebook.1i justice gorsuch: to some degree, is that an acceptable standard to the government? i want to know my yardstick. i take lightly from lujan. i take to some extent from massachusetts vs. epa, and i take the statement in larson that i don't have to agree on 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 problem but help it a little bit. justice gorsuch: do th that stae extent -- that the injury could be remedied to some extent by an injunction. mr. fletcher: correct, if they are likely to face moderation on

10 posts and the injunction against the government would make it eight, then no. justice gorsuch: ok. flipping back, the substantial motivati factor obviously 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 officials are repeatedly saying that facebook and the federal government should be partners, we are on the same team, officials are demanding answers -- i want an answer, i want it right away. when they are unhappy, they curse them out. there are regular meetings. this constant pestering of facebook and other platforms and they want regular meetings and they suggest rules that should be applied so we can help you.

and i look at that and thought, wow, 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 the federal government has got section 230 and antitrust in its pocket and , to mix my metaphors, 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 york times" or the "wall street journal" or the associated press or any other big newspaper or wire service. mr. fletcher: there is a lot wao

give you a specific answer and then step back out. specifically you mention demanding an answer and cursing them out. the only time that happens is in an email about the president's own account. justice alito: ok, we will put that aside. it is constant meetings, 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? mr. 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 change the first amendment principles but it is relevant to how it is applied here. this is a time when thousands of americans were still dying every week, and there was a hope that getting everyone vaccinateduld . and there was a concern that americans were getting their news about 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 also getting their news from the print media on the broadcast media and the cable media and i cannot imagine the federal government doing that to them. but maybe that goes on behind 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 i have the same reaction you do. the emails do look unusual. back and forth between the government and the media is not unusual. of course we talked to platforms the same way we talk to all of you. there is an intensity of this and there is an anger that i think it is unusual. 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. this partnership language is not just coming from the white house. and the anger, most of it, when you read the emails, and i appreciate that you have, because you have to look at them inon the anger is when officials think that the platforms are not being transparent about the scope of the problem. justice alito: let me ask you one more question, and then i'll stop, at least for now. you make a big point in your brief and your oral reply that states do not have first amendment rights. are you saying that they may have a free-speech right but it comes from someplace else? do you think the federal government could prohibit a h official in a state from speaking to the residents? residents? mr. fletcher: no, and to be clear, we are not denying that they have speech rights. we are saying that the governments speech rights, from the structure and not the first amendment rights. they are trying to litigate and

represent the first amendment right on behalf of their citizens' do you think, on the anger 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 me that there has been profanity in the exchange of communication between members of the government and members of the press. justice alito: whenever they write something we don't like we can write them and say, why don't we be partners on the same team? mr. fletcher: justice alito, this is why i want to be careful. i'm acknowledging the reality that this happens and it may:< become a place. i'm not saying it is a good but fundamentally i'm saying the first amendment is an important protection. against actual portion. bui think it is important to■ police not lying. this case shows the danger of allowing parties especially parties without real direct injuries to come into court and challenge these regular back-and-forths. >> from the partner's point, that does strike me as unusual. mr. fletcher: that is traceable. this is not the government where the platforms were saying, we don't want to deal with you on is

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 responsibility to be a source of information. weant to be a sour of good information. on the white house calls and says we have concerns, they agree and that is a good point. justice coney barrett: mr. fletcher, whether or not that ultimately becomes a first amendment violation -- i appreciate the coercion point in the governments first point with respect to the merit of this -- but i'm interested in your view that the context does not principles." i understood our first amendment

to require heightened scrutiny of government restrictions of speech but not total prohibition when you're talking about a ment to ensure that the 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. fletcher: i'm not conceding that is the case. our position is that there was h. >> you mentioned coercion repeatedly in terms of threats. could there also be coercion 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 government 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. fletcher: the other one is harder. one is that these are executive branch officials. they cannot unilaterally enact 230. justice gorsuch: they have a power to influence that. would thatq% be enough to say bt if you do not do x, we are going to change our position on section 230? mr. fletcher: 230 is different because it is about content 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 youre killing

people, could that be coercion in some circumstances? that if you don't change your moderation policies, you are responsible for killing people. mr. fletcher: i think that one is much harder. that is a statement that president biden made off-the-cuff. justice gorsuch: i'm not talking about the context, specific issues. cocusation 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 did not happen here. the president said this to the public in the middle of a pandemic, and three days later, he clarified. he said, i'm not saying facebook is killing peogve. said i'm saye that say this are. i'm not looking to hold anyone accountable.

i want everyone to look in the mirror and imagine what would happen if this misinformation was going to their loved 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 enough to say if you don't do this, we will move your reporter's cubicle down the hall?

how do you evaluate when it constitutes coercion? mr. fletcher: i think bantam books has been the lodestar -- around the idea is it a threat or statement that a reasonable person would understand viewed objectively and in context as a threat of some adverse government action. as to the cubicle question, ithe adverse government actions that are so trivial that they don't count. in general, i think our position is, if there is something the government is saying that we will exercise government power in some way unless you change your speech in some way, and it is reasonably understood 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 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 noengage in retaliation. it engaged in more speech. the president and others went to the bully pope it. bully pulpit. justice thomas: back to my point about coercion, couldn't you censor someone or prevent other speeches or speech by others by agreeing with the platforms as opposed to coercing the platforms? you just work together and say, look, we are right and they are wrong. let's work together. we are on the same team. let's work together to make sure

this misinformation does not gain any following. mr. fletcher: as long as the platforms are exercising their own independent judgment -- that is what the first amendment protects. justice thomas: you are saying that the government cannot censor by coordinating with private parties to exclude others' speech. mr. fletcher: i'm saying when the government persuades a private party not to distribute or promote someone else's speech, that is not censorship, that is persuading a private party to do something a private party is lawful to do. and there are a lot of context persuade private parties that -- could not do directly. for example, after october 7 universities were called on to do more about antisemitic speech hate speech on campus. public officials could call for those changes. the government can encouragents7

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

protects, which is private speakers making independent judgment, maybe informed by the government. justice thomas: there is no difference between the platforms meeting and working out an arrangement not to permit certain speech andorms working with the government to do the exact same thing. there is no difference. mr. fletcher: if the platforms entered into somagreemt among themselves, that might raise issues under different provisions of the law. the modest point i'm making is just the government does not violate the first amendment when it persuades another speaker not to distribute speech to someone else. that is my modest point. that is what happens when the press secretary calls of the "new yorkim and says that was a bad op-ed. justice alito: on the traceability-causation question, if the plaintiffs show that the government's actions were a motivating factor, it is not their obligation to show that

they would not -- that the platforms would not have done what they did were it not t for would be the defendant's obligation to show that. mr. fletcher: i'm not sure 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 what happened here. justice alito: a less defendant friendly standard on the merits. it seems odd. one last question, really quickly, you have never argued that this case is moot? mr. fletcher: we have not. justice alito: thank you.

th clapper, and it seems that clapper really does change a lot of the cases in terms of requiring a heightened traceability standard, does it not? mr. fletcher: we think clapper is very instructive. we think it is relevant to traceability and most relevant at the future injury question. i think we a rig traceability with all of the past moderation of their content. i think we are on stronger ground when they say the vast majority of what they are talking about is covid-19. their burden is to show they 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 not enough. jutice sotomayor: if you go bac?

mr. fletcher: i don't think we do. 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 a lot of specifics. when the dates are provided, they don't line up. the first example on page 19 of the red brief, i think it is ms. hines, where she gets her retweet from robert f. kennedy, jr. is suppressed by twitter.■■l she does not say that governments statements happened

between january and july of 2021 and the moderation of her retweet happened in april of 2023. years later, after twitter had been sold and after it had abandoned its covid-19 policy. i think there is a traceability problem. jutice sotomayor: thank you. chief justice roberts: justice kagan? justice kagan: on the cores in question is there anything we have to review on clear error? mr. fletcher: historical fact, this statement was made. it was not made if there were specific factual findings made. things like -- this was pressure or coercion, we think those were characterizations. and the timate first amendment■á 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 it that if no future harm, that is independently sufficient, is tri mr. fletcher: correct. justice kagan: would there be any difficulties with confining the holding to that if we were to find for you? mr. fletcher: i think in some ways that is the easiest way to resolve the case.

this is an action for injunctive relief. we don't have to adjudicate parties over past harm, we just have to execute the burden. justice gorsuch: in 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. fletcher: the complaint 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 at coercion, is it in your mind a relevant consideration that the industry very concentrated and therefore coordination problems that otherwise might be difficult with the media, which are very diverse, might not be present in some cases? mr. fletcher: context matters. in some ways, the fact that these are very large corporations does against a finding of course and because they are sophisticated. i hesitate to say that it suggests you should change the first amendment standards. justice gorsuch: i'm not suggesting that. the night brief said j=rt 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'm not sure. whether i agree with that. the point is that for our purposes the constitutional line is between coercion and not portion. justice gorsuch: in these context specific inquiries we

have discussed, you have poied out one way in which concentration might make it less susceptible. do we have to account for the possibility as well, not being specific, it may make coercion's easier? mr. fletcher: if that were true, you would have to account for it . i think the concerns about concentration in the industry go more to the potential effects of course and if it happens versus whether or not portion happens. i get that. i'm sensitive to that. what i was trying to draw was at the first amendment is not the answers to the problem of concentration. chief justice roberts: justice kavanaugh? justice kavanaugh: so i understand your key legal argument is that coercion does not encompass significant encouragement or entanglement, and that it would be a mistake to so conclude because traditional everyday communications would be deemed 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 others interacting with the government into state actors restricting their editorial choices. adverse government action. justice kavanaugh: on the "killing people," hypothetical or not hypothetical, but statement, that raises national security analogies. i don't know what your experiences are if you are plugged into this, but it is probably not uncommon for government officials to protest

an upcoming story on surveillance or detention policy and say, if you run that, it is going to harm the war effort and put americans at risk. mr. fletcher: i cannot profess to have had personal experience about that. i know it has happened. i think that is an example of a valuable interchange as long asf the line. i think platforms want to know if they are publishing a story and they might put lives at risk.vernment. justice kavanaugh: and to tack onto that, if you post the story, we will pursue antitrust action against you? mr. fletcher: a huge problem. yes. justice kavanaugh: you don't describe what you think the common interactions are -- i mean, what do you think those are? mr. fletcher: at issue 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 media about things they don't like or don't want to see or complaining about factual inaccuracies. i would be interested in whatx"

you want to describe about that. mr. fletcher: i think that is exactly right. i won't profess to give you a comprehensive overview. we have injunctions. it comes into a couple of different buckets. one is engagement on matters of public policy and i think that is what was going on here. child and mental health, antisemitic speech and islamophobia language is on that line. another is the national security space. they might want to use legally the bully pulpit. another is the national security space. the record is clear is there on the fbi providing these foreign maligned selected actors for the platforms to take action if appropriate. there is also domestic law enforcement side of things and child exploitation and things like that. the platforms are a vector in those sorts of activities, and the government communicates with them on things like that. there islso government

election issues. false statements of times, saying "if the polls are closed early, don't bother to vote," in an effort to suppress the vote. those sorts of things are of can sworn to the law enforcement entities. i think there is also the cdc's interactions involving providing advice -- by the way, we are seeing a lot of this information circulated on your platform that is not true or is misleading about something 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 between bantam books and state action generally.■5 justice thomas, he was talking about the distinction between encouragement and coercion.

what if facebook said, you know what, we are partners. we are on the same team. this is a once-in-a-lifetime pandemic. we think it would be most helpful for the public good for us to turn over our content moderation to you. thit 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 something together where the government is doing things making decisions. it is not just advising the platforms. e rubric may well be state action, but the rubric may be more found in the joint action cases then offer significant encouragement. justice barrett: how do we consider the relationship between those things? because i agree with you, bantam books is about drawing the 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 which framework is the right one. what advice do you have? mr. fletcher: if i were the court, i would want to beg too definitive pronouncements. i would here, what is challenged is that the persuasion provision of information and that when those are issued the main yardstick will be bantam books, and the concern is, have you crossed the line from trying to persuade to trying to threaten and bantam is the right way to draw the line. there are a lot of different briefs -- and many agree this is the right line, in this context. i think you can reserve and say it would be a different questioe government and the platforms acting together and turning over operable control. it is really not the kind of issue here. justice barrett: and that is not alleged here. mr. fletcher: exactly right. yeah. justice barrett: you were prett,

saying that we don't have to review any of the district court's factual findings. i just want to make sure that is right, because i'm thinking about things you talked about with justice alito, the interchange of the expletives, we are getting mad, we want answers now -- and that was actually about his own facebook account. or there was another exchange that was actually about someone impersonating the president's granddaughter on twitter. if the lower court, which i think they did, conflated some of those threaere designed to bs related to the pandemic, that that kind of suppression would not be clear error? mr. fletcher: guided not mean to say there would not be clear error at old. all.

i just meant to say it would be findings for historical fact. and those do count but i think we pointed out places where there are clearly erroneous. we might agree there that clear s were suggesting it that things were said were not said. justice barrett: in considering traceability, you would say that maybe there are some things we would review for clear error , because they 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 jackson: i did not perceive there to be such a sharp distinction between blom and bantam books. that bantam bs is the way to go and that blom is not the right test. i appreciate that blom uses significant encouragement, but i think lj sthe government has

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

to turn that significant language into something quite different, into circumstances where the government encourages in some colloquial sense by persuading something or advocating for something. and we do not think that these court state actions ever said. justice jackson:and even if we n which significant encouragement is verboten, is there something different to the government providing information? i am a little worried about the respondents -- what i think could be taken away from their view, which is that in situations where the government has information that may be unique to the government's knowledge, but that it feels important for the public to have, that that somehow becomesd prohibitive, if, as a result of this information, these companies decide they will do something different with respect to content moderation. mr. fletcher: that is our big concern, and i think that is what the lower courts found across the line. the fbi providing information about covert actions on platforms versus the cdc asking questions about 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 court. government censorship has no place in our democracy. that is why this 20,000 page record is stunning. as a fifth circuit put it, the record reveals unrelentingr■ pressure by the government to coerce social media platforms to suppress the speech of millions of americans. the district court which analyzes records for a year described it as arguably the st massive aacfree speech in american history including the censorship of renowned scientists opining in

their areas of expertise. the governments levers of pressure are and nothing much to the first amendment. behind closed doors the government watches the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the white house are concerned and it ominously says the white house is considering its options and it accuses platforms of playing ball and hiding the ball. all to censor more speech. under this onslaught, the platforms routinely cave. , the platforms told you it isn't -- incredibly important that the platform create their own content moderation policy, but this record shows they continuously depart from those policies because of unrelenting government pressure. as facebook recently disclosed in an internal email to a former u.k. deputy prime minister, the reason facebook did that was because we were under pressure by the administration. we should not have done it. now, my friend says all of this government has the right to persuade using the bully pulpit.

but the government has no right to persuade platforms to violate americans constitutional rights. and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. that is just being a bully. i welcome the court's questions. justice thomas: counsel, i know your argument is a bantam books argument, but do you need coercion in order -- you think that is the only way you could e 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 lead with encouragement in our red brief. in norwood, the court or the government cannot induce, encourage, and promote private actors to do directly what the government cannot itself do directly. that is the principle guiding here.

regardless of the means that the government tries to use to pressure the platforms to commit censorship against third parties, the constitution does not care about that. it is the fact that what the government is trying to accomplish is the suppression of speech. i was there, your exactly how you address this question at bantam books. did the government set out to deliberately suppress speech? the answer in that case wa, ands case here. i would say when this court considered bantam books, one of the key things about the analysis was that it was an obscenity case. the court struggled with whether the state has the right to police the line between legitimate speech and illegitimate speech. and that is why you're talkingc. you are asking --justice sotom'm sorry, the reason we were asking about coercion because the private parties could have

chosen on their own to censor that speech. they could have said, we think it is obscene, and i will be involved in this. the only issue became when that choice was overwritten by the government. and so, i think you are mixing situations and confusing legal doctrines. mr. aguiñaga: no, your honor, the fundamental principle and this comes from norwood and is central to the press to mimic case is that the government cannot do indirectly what it is prohibited from doing directly. and that is what you see happening in bantum books and in a case like this. time and again there were times when the social media platforms had policies that did not go far enough in censorinthe speech justice barrett: whether or not the government can do this -- and this is something i took up with mr. fletcher -- it depends on the

application of our first amendment jurisprudence and there may be circumstances in which the government could prohibit certain speech on the inte do you disagree about we would have to apply strict scrutiny and determine 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 inqyonducts t on speech necessarily becomes a first amendment violation, correct? mr. aguiñaga: not necessarily, your honor. has a government set out to abridge the freedom of speech? in this case, you see that time and time again. justice jackson: this is not 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 litigated. thqu case is whether the government itself -- justice jackson:justice jackson: 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 same way you did bantam books. used that term four times in bantam books. justice sotomayor: encouraged to suppress their own speech. so, like justice kavanaugh, i have some experience encouraging. [laughter] you just wrote a bad editorial. here are the five reasons you

should not write another one. you just wrote a story that filled with factual errors. reasons you should not do it again. this happens thousands of times a day. mr. aguiñaga: in the modeling case you're describing to make a vein of the government going after the speaker themselves 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 discovery. when the deputy assistant to the president sends an emails of facebook or twitter and complained that they are not doing enough to censor with a view as vaccine hesitancy speech, the third party, people like jill hines and■ jim hoff, whose of speech the white house is starting, they never know that is happening behind the scenes, and i think it makes a difference, justice kagan, that

you have an intermediate who has no incentive to defend jim half's speech or jail hines' speech. >> what about abe? mr. aguiñaga: -- op-ed? mr. aguiñaga: if the newspaper declines to run on op-ed, that author can go to any number of publications and have an outlet. it is not the same here because if i am on twitter and i wish to express a viewpoint that the government wishes to censor and twitter bows to that pressure -- >> i was just going to say first, i have no experience coercing anybody. [laughter] second, the government is not monolithic either. i suspect when there is pressure put on the platforms or one of the other media outlets, they got people they go to probably in the government to say, they are trying to get me to do this, and that person may disagree

with what the government is trying to do. it is not monolithic and that has to dilute the concept of coercion significantly, doesn't it? mr. aguinaga: i am not sure i agree with that. i guess i would get back to one of the earlier points that whether you call this coercion or encouragement, promotion, inducement, whatever it is, if the government is attempting to abridge the speech rights of a third party, that has to be unconstitutional because it falls within the plaintext text of the third amendment.rc 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 do you analyze a situation where maybe epa is trying to coerce the platform about something and the army corps of engineers is trying to coerce them the other way? you can't pick and choose which part of the government you are concerned about. obviously, it is different when you're talking about what the president is saying in t, i think it is a more fluid situation than anything else. mr. aguinaga: that is fluid, your honor, but as we have plaintiffs in this case who wish to express certain viewpoints

that have been specifically targeted by the government, it is not at least fluid in these facts. this is not a case about covid, it is about election integrity, it is a case that the court has abounding about -- >> what about that? take an examplspeech. let's call it part of law enforcement says you may not realize it but you are hosting a

lot of terrorists speech, which is going to increase the chances that there is going to be some terrible harm that is going to take place, and we want to give you this information, we want to try to persuade you to take it down. the government can't do that? mr. aguinaga: the government can absolutely do that. >> you are asking 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 that come under the first amendment. cruiting people for their organizations. mr. aguinaga: your honor, if it is first amendment speech, protected speech, i think we 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 distinguishing bween womestic on conduct. the way this issue arises is maybe you have a foreign actor who tweets "i love biden" and there are 20 million people who wish to retweet that, repost it with their own comment saying, i love biden too.

when an american does that, that is first amendment protected when the government comes in and tries to take down every single post that contains the core that they say was foreign speech they wn the added speech by americans. that is where the first amendment issue is. decades ago it happened all the time, which is somebody from the white house got in touch with someone from the washington post and said, this will harm national security, and the washington post said, ok, whatever you say. we didn't know enough, but that was coercion? mr. aguinaga: thought i understood the government this morning to say that might be a first amendment issue. what i would say is if there is a national security interest, maybe the government can satisfy circuit scrutiny in that

circumstance. we would not have a lawsuit based on that because i don't know how we get perspective based on reach out from the white house. >> what i am trying to suggest is there are all kinds of things th can appear l kinds of different harms, and the inability of government that you are suggesting to reach out to its platforms and say, we want to give you information that you might not know about on this, and we want to give you our perspective on what harms this is doing, and we want to be able to answer questions that you have because we really do think it would be a good thing if you, on your own, chose to take this speech down. >> if those were the facts in the case, it wod be a much harder case for me. >> i don't know what your standard is. you just told me that was good enough for you.

mr. aguinaga: no, your honor, because in that circumstance you have a platform who is reaching out, or the governnt r the right state of the law. the government, this court has made clear for a while, since its plurality opinion in alvarez, if there is full -- false speech, the reality is true speech. nothing prohibits the government from going to that platform and saying, we have seen a lot of false information about election activity and covid and vaccines d nt from providing a list that says, this is what we say is true and you should amplify our speech, and you should put our posts right next to it saying this is the government's view on this issue. the problem here, and i think you see this in the summer of 2021 after the white house goes nuclear on the platforms is that the platforms themselves 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 prime minister of the u.k., and after all this pressure for months and months, he sends this email to the surgeon general and says, thanks for taking the time to meet. i wanted to make sure you saw the steps we took this past week are moving, to take steps to further address the info. we have removed 39 profiles, accounts. we are continuing to make other accounts hard to find. this is an example of other platforms moving beyond what their policies require because they felt pressured to take more action and sensor more speech. if that is not the clearest example of the government -- >> point to me where you havin the record that the 39 accounts that were taken out were relate] to any of the petitioners here? mr. aguinaga: sure. >> and give me that cite again.

mr. aguinaga: roa 1522, and what that email mentions is the so-called disinformation dozen. this is a group of people the government thought was responsible for the majority of paragraph so-called media. in paragraphs five and six of each of the supplemental back declarations in the joint members appendix, each of our individual plaintiffs specifically identifies the facts that they follow members of the so-called disinformation dozen, they repost their post, they engage with their speech. so, when the platforms in response to the pressure are taking down content and accounts re call it the disinformation dozen, that is impacting our plaintiff's right to engage with their speech. >> they took down someone else's posts. that is what this is saying. mr. aguinaga: that is what i was quoting right now.

>> i don't think we have ever been standing on the basis of injury to another. injury to you but not to another.mr. aguinaga: let me giu 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 april 2023 is on the eve of the preliminary injunction hearing. what she says is this facebook post i posted was taken down by facebook. violation of community standards. what was that post? it was a screenshot of robert f. kennedy, jr., a member of the so-called disinformation dozen. the tweet was talking about tucker carlson, who the administration was obsessed with. >> i'm sorry, the rfk tweet, there is only a record of the

white house asking twitter to remove a tweet, and not particularly this one from rfk. that does not help hines' claim that the white house asked facebook to remove anything. mr. aguinaga: it does, your honor, and this is a good example of the interrelationship between the various media platforms. you have crossposting. what happened in this example, jill hines took a screenshot of a tweet, then moved it to facebook and posted it as her own facebook post. when she did that, she moveds to describe that tweet. he was talking about tucker carlson, who the white house targeted in the joint appendix. >> i have such a problem with your brief, counselor. you omit information that changes the context of s you attribute things to people who it didn't happen too, at

leasin it was her brother that something happened to, not her. i don'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 sotomayor, let me start by apologizing if any aspect of our brief was not as forthcoming as it should have been. i take full responsibility 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 case in multiple ways. one of the ways you look at her standing is you look at ja715 to 716. this is an email to facebook, where the white house 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 earlier to ja631.

this is jill hines' allegations. what she says is two months 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 what is at stake here, which is those groups were political action groups. louisiana had a legislative session in progress. what jill hines was trying to do was mobilize 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 couple months before, and lo and behold once jill hines tries to use the groups that the government ta they are pulled down. her political organization is stymied. that is all over the record, and

that is one fraction of the kinds of harm that is at stake here. >> can i ask you -- i want to go back to the interchange with justice kagan about the confess that it left me very confused. it sounded like you were articulating different standards, different legal standard, dein for example, when justice kagan gave you the hypothetical of pressure being placed on the new york times or washington post not to run a particular op-ed, it seemed like you backed off and said significant encouragement would not be enough because the people who wrote the op-ed would go to another news outlet. you ma■de the point that this is different because social media is such a concentrated industry, which is a point that just as gorsuch was asking mr. fletcher about. n because it seems to me that as a matter of law, 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 standard i would start with is 635 in

norwood, the court cannot do indirectly what is prohibited from doing directly. the second line in response to■" that is, what sorts of indirect mechanisms can the government use that would run afoul of that rule? one particular mechanism is coercion, another is encouragement. this court has also used -- >> encouragement, or 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 ■e amendment purist, we need that to win in this case because we are so far afield of 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 say you get doxed and so do numerous other members in the

uisiana ste government. someone is posting online about how people should really rally and do something about this. people should rally and you should be harmed. the fbi sees these posts and calls the social media outlet, 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 em mr. aguinaga: my first question is whether that would be protected speech. >> let's assume that everything that is said -- i was trying to make it short of actually being illegal. your mr. aguinaga: as i say, i am a purist on the first amendment, so my answer would be yeah. >> do you know how often the fbi makes those kinds of calls? mr. aguinaga: if you think there absolutely can identify certain troubling situations and let the platforms take action.

the hypos are very important, but when you look at what is happening in this case, what they are doing, there is 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 whar other cases, too. >> it does, your honor. what i would say in response to that, and i am sensitive given thpo what the fbi is doing is trying to persuade a speech intermediary to take down 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 you are not focusing on the fact that there are times in which that the government can, depending on the circumstances,

encourage, perhaps even coerce, because they have a compelling interest in doing so. that is why i keep coming back to the underlying first amendment issue, which we can isolate in this case and talk about coercion. that there are certain circumstances in which the government can provide platforms to take it down, tell them to take it down. what about the hypo of someone posting classified information? they say it is my free speech rights, i got access to this information, and i want to post it. are you suggesting the government couldn't say to the platforms, we need to take that down? >> no, your honor, because i think that would be a great example where strict scrutiny would be in the government's favor. >> what do we do a situation in which -- i guess in this case we are asking -- the government's point is we did not coerce, and i appreciate the debate about that. but you just seemed to suggest

that as a blanket matter the government doesn't have the ability 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 the bully pulpit as well. as i understand it, the bully pulpit has never been used to target the object of suppressing a third party's speech. you can use it to coerce behavior, to course companies to take certain actn, government is identifying a certain viewpoint and content it wishes to eliminate from public discourse, that is when the first amendment problem arises. i am struggling to find an example in the court's cases or history where the court or anybody else has said the government by virtue of being the government can use its power

intermediary is eliminate entire viewpoints and content from the public discourse. >> can i give you a hypothetical? mr. aguinaga: sure. >> supg about a new teen challenge that involves teens jumping out of windows at increasing elevation. this is the challenge. and kids all over the country start doing this. there is an epidemic. children are seriously injuring or even killing themselves in situations. government authorities could not declare those circumstances a public emergency and encourage e down the information that is instigating this problem? mr. aguinaga: the government absolutely can use the pulpit to say publicly, here is what we recognize to be a public health issue emergency. obviously it is extremely terrible and the public should not tolerate this. 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 protected 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 issue. i guess what i fall back on is at least where the government itseere is no emergency -- >> my hypothetical is there is an emergency, and i guess i am asking you in that circumstance, can the government call the platforms and say, this information you are putting up on your platform is creating a serious public health emergency, we are encouraging you to take it down? >> i was with you until that last comment. i think they can call and say, this is a problem, it is rampant on your platforms. but the moment the government government and its stature as the government to pressure them to take it down, that is when you are interfering with third-party speech --

>> go ahead, finish. mr. aguinaga: the third party is absent from the conversation. the third party whose speech is being censored is absent from this discussion. >> du jackson's hypotheticals end with, we encourage you to take it down, does that rise to the level of coercion you think is problematic? mr. aguinaga: if the test is coercion, i think i might have a harder case saying that is coercion. i think by its definition, it is easier addressed as a substantial encouragement case. but whether it is encouragement or joint participation and conspiracy, at the end of thef=i day, 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 was to eliminate

in some game that is seriously harming children around the country.■? to stop that. that violates the constitution? mr. aguinaga: i agree that as a policy matter, it might be great for thgo government identifies an entire category of content it wishes not to be in the public sphere, that is a first amendment problem. >>ha justice alito? >> mr. aguinaga, i think some of your most recent conch we have -- colloquy with myns that i didn't take from your brief that we actually need to decide in this case. so, i thought your principal argument was that whatever coercion means is sufficient and coercion doesn't apply only when

the government 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 you have to take into account the whole course of the relationship regarding this matter. that is what i took to be your principal argument. did i understand tharr >> that is correct, your honor. we've got 20,000 pages in this record of the government persiso -- 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 is you have this fast repetition of communications, but it is all, the bulk of it, is behind closed doors. that is what is so pernicious about this. if we don't have a remedy in this case, it is hard to see how there will ever be a remedy for a future plaintiff who turns out 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 back to the standing question? if i ask you for the single piece of evidence, and maybe this is the piece that you were describing earlier. i want to makele the single piece of evidence that most clearly shows that the government 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. aguinaga: sure, your honor. i think jill hines is the best example on standing. >> even on that one, i didn't understand what you were saying, how you drew the link to the government. we know there's a lot of

government encouragement around here. we also know that the platforms are actively content moderating, and they are doing that irrespective of what the government wants. so, how do you decide it is government action as opp(p.gosek platform action? mr. aguinaga: your honor, let me answer your question directly. the link i was drawing was a temporal one. two months after the email, calls for targeting health groups like jill hines' group, she experiences the first example of that. things can happen in two months. that decision two months later could have been caused bthe government's email, or the government email might have been long since forgotten because there are 1000 other communications that platform

employees have had with each other, 1000 other things that platform employees have read in. why would we point to one email two months earlier and say it was that email that ■lde all the mr. aguinaga: and i would say 1000 other emails between the white house and facebook in those two months, that is the volume of this interaction, this back and forth between the platform and the government. >> but if it is encouragement -- let's even take that this was something that the government was continually pressing, encouraging. encouraging the platforms to do. until you can show that there is something about overbearing the platform's will -- it seems sort of hard to over bear facebook's will, from what i can gather from the world, but how do you say it is the government rather

than facebook? mr. aguinaga: what i woulday is the context in which these communications arise, the facebook emails are attempting, they used terms like partner. they try to work with the government. you could say the same thing about how you know 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, that communication. the government is making some broad statements about the kinds of communications it thinks are harmful. facebook has a lot of opinions on its own about various kinds of communications it thinks harmful. if you're going to use standard ideas about traceability and redressability, i don't see a single item in your briefs 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 gateway pundits specifically appear in the tracking spreadsheet 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 a coordinated effort to get jim hoff. i think that is our seco b brie. chief justice roberts: justice gorsuch. >> you spoke with justice kagan about your best example on traceability. how about redressabilityby the e are in 2023. mr. aguinaga: we had two supplemental declarations at the end of the joint appendix from jim hoft and jill hines that identify the specific posts they

have posted on twitter and facebook during the pending preliminary injunction proceedings. one of the ones we talked about was ja793 and 794, which is the jill hines facebook posts referencing rfk, referencing tucker carlson, referencing vaccines. all of these are examples of injuries that postdate a lot of the earlier filings in this case. when you talk about that, this is in order to the government to knock continue in the sorts of censorship that leads to these■■ kinds of censorship decisions. >> i would like to talk briefly about remedy. this is another example of a district court enjoined behaviors and actions to parties not affecting your client. we have seen an epidemic of

these lately. what do we do about it? mr. aguinaga: a couple of responses to that. one of the reason the breadth of the injunction is wht what was explained in ja81 to 83. the breadth of the government's enterprise was extreme they -- extremely broad. i spoke with justice kagan about whether or not you can identify them calling out jill hines specifically. the reason it is hard to do that is they were not cutting at that 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 reason you see the breadth of the injunction, it is a product of what the government did. >> every universal injunction case, but your clients are your clients. it is their case, their

controversy. normally our remedies are actually complaining before us and not to those who aren't, right? mr. aguinaga: you can see how we are completely fine if you want to limit the injunction to the five platforms in which we were able to get 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 court has to say something in our favor. the government cannot just run rampant pressuring the platforms to sce 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 as i say, i am not wedded to any

label, we are not wedded to any label, but i agree the word encouragement does not appear i. >> and one thing i want to square up with you is if someone calls and contacts a social media company and says what you have there, this post has factually erroneous information. so not a viewpoint that we disagree with, factually erroneous information, and the social media company says, we will take a look at that, and you still think that is significant encouragement that qualifies as coercion if they take it down in response to concluding that is in fact only factually erroneous? mr. aguinaga: if it is the government saying this is our view of the statement -- >> we think it should be taken down. it is up to you, but we think it should be taken down.

mr. aguinaga: i think that is a harder case for me. if you think it is a close case -- >> what about the first amendment? that is the question here. you cannot just claim the mantle. when you say it is a harder case, why do you think it is a harder case? mr. aguinaga: because i understand the instinct that asking very politely or saying very politely we thi should not be a first amendment problem. the reality is when someone like the fbi or deputy assistant to the president makes a statement like that, that statement carries force. that is just the reality. my dear mother is a saint and if she makes the same statement to twitter, they don't know her from adam. >> why is that? is it your assumption that anyone in the circumstances are always implicitly threatening adverse consequences? mr. aguinaga: no, your honor. this is where i think bantam books is good for us. you look at the substance of the communication and say, what is

the government doing here? is it trying to suppress third-party speech? >> the hypo was about factually inaccurate. mr. aguinaga: right, factually■% inaccurate information, and if the government says our view of that is that it is false, they can absolutely say that. but if they do more and say, you need to take it down -- >> you should take it down. mr. aguinaga: you should take it down, that is a first amendment issue. >> something factually 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. aguinaga: the north star for the government in that situation is the true speech should counter what they think is false speech. the government is not helpless. it has tools at its disposal and

censorship has never 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. point, which is you can have a threatener. it still violates the first amendment even if the recipient fails to comply. >> thank you. chief justice roberts: justice barrett. >> picking up on justice kavanaugh's question, what makes something threatening and is it something inherent on the person on the other end of the line being a government official. bantam books points out that the speech, the threat, the encouragement, what we can posit from this purpose comes from someone with the authority to impose a sanction. is that important in your view?

mr. aguinaga: it isn't. we think it is a relevant fact that if someone like an fbi agent that is meeting regulaking these kinds of requests, that is a fact you have to take into consideration. justice sotomayor has a procuring panel decision in the second circuit that addressed this issue about authority, and the issue in that case was that the borough president of staten island did not have the authority to take down a particular billboard, but the court still said that the fact that the recipients thought thee to use whatever authority he had to cause trouble for the billboard or mayor, that was enough. if the speaker -- that is a critical fact you have to take into account because if it is someone that twitter does not know from adam making the request, they will just ignore it. >> if it is somebody on the hill. you have people on the hill who don't have control over doj. or if it is white house mentioning 230, or maybe that is what is in the platform's 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 making that n't me 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 >> authority can drop out. the point is if it comes from the government, and there may be a conceivable way the government