Supreme Court Justice Ketanji Brown Jackson (Tom Williams/CQ-Roll Call, Inc via Getty Images)
"Your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods," she told the lawyer representing Louisiana, Missouri and private plaintiffs.
"The government actually has a duty to take steps to protect the citizens of this country... by encouraging or even pressuring platforms to take down harmful information," she said.
"Justice Jackson appears to be saying that she believes that the states’ view would prevent the government from explaining its facts or positions to the social media companies when there is some danger or imminent threat," John Shu, a constitutional attorney who served in both Bush administrations, told Fox News Digital, noting that the "heart" of the case "revolves around where the differentiating line between persuasion and coercion exists."
"The First Amendment does not prevent government officials from complaining about a particular post or explaining why the post is factually incorrect. In fact, that’s why X has the ‘Community Notes’ function," he said.
However, Shu noted that the First Amendment "prevents government officials from coercing, whether explicitly or implicitly, publishers to remove posts or articles because the government disagrees with or doesn’t like that viewpoint, even if it is under the guise of ‘national security’ or ‘public health.’"
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Missouri Attorney Genearl Andrew Bailey (Graeme Sloan/Bloomberg via Getty Images)
"The government is not monolithic either," said Chief Justice John Roberts, using another hypothetical. "Maybe EPA is trying to coerce a platform about something, and the Army Corps of Engineers is trying to coerce them the other way? I mean, you can't just sort of pick and choose which part of the government you're concerned about."
When the lawyer for the plaintiffs argued the federal government was indirectly engaging in "encouragement" with platforms, Justice Amy Coney Barrett interjected.
"Just plain vanilla encouragement, or does it have to be some kind of significant encouragement? Because encouragement would sweep in an awful lot."
Justice Elena Kagan raised national security concerns.
"Terrorists engage in things that come under the First Amendment. Let's say they're just recruiting people for their organizations" online, she asked. "There's all kinds of things that can appear on these platforms that do all kinds of different harms, and the inability of government that you're suggesting to reach out to these platforms and say: ‘We want to give you information that you might not know about on this.’"
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Jenin Younes, counsel for the New Civil Liberties Alliance who represented private individuals in the case said they were "optimistic."
"Our clients, who include top doctors and scientists, were censored for social media posts that turned out to be factually accurate, depriving the public of valuable perspectives during a public health crisis," Younes said.
"We’re optimistic that the majority will look at the record and recognize that this was a sprawling government censorship enterprise without precedent in this country, and that this cannot be permitted to continue if the First Amendment is to survive."
Fox News' Bill Mears and David Spunt contributed to this report.
Brianna Herlihy is a politics writer for Fox News Digital.
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