Lauren Feiner, reporting for The Verge:

During oral arguments on Monday, both liberal and conservative justices on the Supreme Court appeared wary of imposing broad limits on how the government can communicate with social media companies about problematic content it thinks should be removed.

The case at issue is called Murthy v. Missouri, and it asks the court to determine whether the Biden administration’s communications with platforms coerced the companies to take down content, like misinformation about covid vaccines, thereby violating the First Amendment. It also asks the court to consider whether the government’s encouragement to take down such posts actually transformed the platforms themselves into state actors…

Liberal Justice Ketanji Brown Jackson asked Aguiñaga a hypothetical that demonstrated concerns with how a ruling squarely in the states’ favor could play out. She imagined a social media challenge among teens that encouraged them to jump out of windows, leading to injuries and deaths. “Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” Jackson asked.

Aguiñaga said the government could use the bully pulpit to publicly encourage the platforms to do that. But he took issue with private communications instructing platforms on what they should do.

As a stalwart supporter of the First Amendment, restricting the government’s access to speak with “Big Tech” companies seems problematic at best and dangerous at worst. The government is not aiming to silence speech, it’s just providing recommendations to the social media platforms about how to moderate dangerous speech. Notably, the concerns the government has voiced to the platforms have been about safety, not specific viewpoints, but right-wing nuts have interpreted “silencing” Covid vaccine conspiracies as somehow being against a viewpoint. It’s not silencing any viewpoint — it’s public safety. Just as the government could take down a poster posted on the side of the street that read, “Take off your seatbelts, they’re bad for you!” the government can also ask social media platforms to take down dangerous content.

One notable detail here is the word “ask,” not demand. This case does not center around a specific action the social media platforms took, because social media platforms reserve the right to moderate their content however they please according to the First Amendment. The subject of this issue is communication, i.e., the federal government asking social media platforms to take down content in a manner that has been perceived by the lawyers as “coercive.” The government does not have the right to take down speech hosted privately unless it is illegal — nobody is arguing to the contrary here. The government is just asking for the speech to be taken down in the interest of public safety. Good on the justices for noticing this distinction — they clearly aren’t the most intelligent characters on the planet.

When the justices issue a ruling, presumably in the summer before the court’s annual recess, they should specify this distinction in it, because it’s important. The executive branch does not have the right to demand speech be taken down unless that speech is illegal, i.e., child sexual abuse material, but it certainly has the right to request that speech be de-platformed, just like any other citizen who utilizes a reporting feature on one of the websites or a nonprofit pointing out problematic speech. The difference is notable because it’ll prevent future nonsense suits like these from being heard.