Analyzing the arguments as Supreme Court hears 2 cases centered on free speech

Geoff Bennett:

The First Amendment was at the center of two key Supreme Court arguments today.

One focused on social media companies' handling of misinformation, while the powerful gun lobby, the National Rifle Association, was at the center of another.

Our Supreme Court analyst, Marcia Coyle, joins us now.

It's always great to see you.

Marcia Coyle:

Good to see you.

Geoff Bennett:

So, as we said, two big arguments.

The first one was about social media companies and whether the Biden administration violated the First Amendment when they flagged COVID misinformation to tech giants like Facebook and X, formerly Twitter. Where were the justices on this case in particular?

Marcia Coyle:

Well, the crux of the case and the second case as well is really, how do you tell when the government has crossed the line between what's permissible persuasion and unconstitutional coercion?

In fact, justice — the chief justice framed that as the question. How do we measure this? Is significant persuasion enough? What else — in fact, the lawyers for the states that brought this lawsuit said, you don't even need coercion. You just need inducement and encouragement, which Justice Kagan said was, wow, that's so broad, that's so expansive.

So they're really trying to find out, where is the line here and did the Biden administration cross it? And the justices didn't seem entirely sympathetic to the challengers here, the states of Missouri, Louisiana, and five individuals who brought the lawsuit, because they saw a couple problems with the case.

First, did these individuals in the states even have the right, the legal right to sue here? They couldn't — the justices couldn't see a clear line between the claims that the individual said their posts had been taken down because of government action.

In fact, Justice Kagan said at one point there was such a time gap between the communication by the government and what happened to their posts on Facebook. Was it government action or was it the platform's own action?

So, I — my sense of the argument afterwards was that they're leaning towards — a majority is definitely leaning in favor of the Biden administration here. There was a lot of talk to Geoff about how the government does communicate, how almost every single day you will see a president using the bully pulpit or you will see federal officials communicating one thing or another.

There's just a lot of back-and-forth. And Facebook and social media platforms have their own power. They can say no, and they do often, to the government, and also they can turn to officials when they have complaints. So these were all issues that the justices brought up, which lead me to believe that they're leaning towards the Biden administration.

Geoff Bennett:

Interesting.

We have seen this court take up a number of social media-related cases this term.

Marcia Coyle:

Yes.

Geoff Bennett:

What does that suggest?

Marcia Coyle:

I think it's just the expansion of social media, the amount of information that is going out on these platforms. And it's almost like passage of a big new law. It takes a certain amount of time for issues to percolate from the lower courts up to the Supreme Court.

And they're percolating very quickly right now when it comes to social media.

Geoff Bennett:

Another First Amendment case that was heard today involved the NRA. And they were actually defended by the ACLU today in a case where the NRA is saying they're being punished for their gun advocacy?

Tell us about that.

Marcia Coyle:

Right.

Their lawsuit was against a New York state regulator of insurance companies and other financial institutions. And they claim that this state regulator had used coercion and threats in order to get certain insurance companies to drop their coverage or their relationship with the NRA. And the NRA has lost a lot of those insurers.

And so the court today also was looking at this. Coercion or persuasion? But this is an odd case. It's not social media. A lot is going to turn on the communications that the state regulator had with the insurance companies.

She claims that she was not coercing them, that, one, she was being persuasive and reminding them of the reputational risk they faced of continuing their relationship with the NRA and also that she was primarily engaged in a law enforcement activity, because the NRA was using, issuing insurance products that were, one, illegal, and the NRA did not have a license.

And so she felt that that protected her from any claim of liability. There, too, I think, with the court, it's really hard to tell on this one. And I think it's going to come down to how they actually look at, examine closely the sort of guidance letters that the state regulator put out to these financial institutions in order to decide whether it crossed over to impermissible coercion.

Geoff Bennett:

Marcia Coyle, our eyes and ears at the U.S. Supreme Court, thanks, as always.

Marcia Coyle:

My pleasure, Geoff.