Missouri had its day in the U.S. Supreme Court on Monday, alleging that the federal government crossed a line on free speech. The GOP-led lawsuit, filed by Missouri and Louisiana, argues that the federal government went too far by pressuring social media companies to remove controversial content about the pandemic and election fraud allegations.

During Monday’s oral arguments, Missouri and Louisiana accused the Biden Administration of bullying and using profanity towards social media companies, including Twitter and Facebook, in an effort to censor content. They said tech companies cannot act on behalf of the government to remove speech the government does not like.

Justice Amy Coney Barrett used a hypothetical example of personal information, such as a phone number, address, and names of family members, being posted online about the Louisiana Solicitor General and several other members of Louisiana State Government.

“You’re doxed and somebody is posting online about how people should really rally and do something about this. People should rally and you should be harmed, okay? The FBI sees these posts, and calls the social media outlet like 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 them.’ It’s a problem,” asked Coney Barrett.

“I’m a purist on the First Amendment, so my answer would be yes,” said Louisiana Solicitor General J. Benjamin Aguiñaga.

Do you know how often the FBI makes those kinds of calls,” asked Coney Barrett.

“And that’s why my backup answer, Your Honor, which is, if you think there needs to be more, the FBI absolutely can identify certain troubling situations like that for the platforms and let the platforms take action. But when you look at what’s happening in this case, for example, what they’re doing is there’s no emergency, nothing of the sort,” said Aguiñaga.

“But that’s just falling back on, ‘Well, this case is different. This case is different and so a different legal standard should apply.’ But you know, what we say in this case matters for other cases, too,” said Coney Barrett.

Justice Ketanji Brown Jackson asked the hypothetical about someone posting classified information online.

“They say, ‘It’s my free speech, right? I got access to this information and I want to post it.’ Are you suggesting that the government couldn’t say to the platforms, ‘We need to take that down,” asked Brown Jackson.

“No, Your Honor, because I think that would be a great example, where strict scrutiny would cut into government’s favor,” said Aguiñaga.

“You just seem to suggest that as a blanket matter, the government doesn’t have the ability to, you know, encourage or require this kind of censorship and I don’t know that that’s the case,” said Brown Jackson.

“As I understand the bully pulpit has never been used to target the object of suppressing third-party speech. You can use it to coerce behavior, you can use it to coerce companies to take certain actions. But when the government is identifying a specific viewpoint, and specific content that it wishes to wholly eliminate from public discourse, that’s I think, when the First Amendment problem arises,” said Aguiñaga.

The country’s highest court could rule on the case this summer.

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