The U.S. Supreme Court declined on Wednesday to impose limits on the way President Joe Biden's administration may communicate with social media platforms, rejecting a challenge made on free speech grounds to how officials encouraged the removal of posts deemed misinformation, including about elections and COVID.
Reuters reported the justices, in a 6-3 ruling, overturned a lower court's 2023 decision that various federal officials likely violated the U.S. Constitution's First Amendment, which protects against governmental abridgment of free speech, in a case brought by the states of Missouri and Louisiana as well as five individuals.
Trump-appointed Justice Amy Coney Barrett, who authored the Supreme Court's ruling, wrote that the two Republican-led states and the other plaintiffs lacked the required legal standing to sue the administration in federal court.
The plaintiffs had argued that the administration violated the rights of social media users whose posts were removed by platforms including Facebook (META.O), opens new tab, YouTube (GOOGL.O), opens new tab, and Twitter, now called X.
Barret wrote that the plaintiffs could not show a "concrete link" between the conduct by the officials and any harm that the plaintiffs suffered. They "emphasize that hearing unfettered speech on social media is critical to their work," Barrett wrote. "But they do not point to any specific instance of content moderation that caused them identifiable harm."
In her opinion, Barrett faulted the evidence provided by each of the plaintiffs and said lower courts had "glossed over complexities." Barrett found that Louisiana-based U.S. District Judge Terry Doughty, who issued a preliminary injunction in July 2023, made factual findings that "unfortunately appear to be clearly erroneous."
Reuters reported that Doughty had concluded that the plaintiffs were likely to succeed on their claim that the government helped suppress "disfavored conservative speech" on mask-wearing, lockdowns and vaccines intended as public health measures during the pandemic, or that questioned the validity of the 2020 election in which Biden, a Democrat, defeated Donald Trump, a Republican.
In a dissenting opinion, Alito said the court's majority "permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear and think."
As Justice Alito pointed out:
…internet platforms have a powerful incentive to please important federal officials, and the record in this case shows that high-ranking officials skillfully exploited Facebook’s vulnerability. When Facebook did not heed their requests as quickly or as fully as the officials wanted, the platform was publicly accused of “killing people” and subtly threatened with retaliation.
Not surprisingly these efforts bore fruit. Facebook adopted new rules that better conformed to the officials’ wishes, and many users who expressed disapproved views about the pandemic or COVID–19 vaccines were “deplatformed” or otherwise injured.
However, the majority did not agree and distinguished the actions in this case from the clearly coercive actions undertaken by New York officials in the National Rifle Association of America v. Vullo case, where it found for the NRA.
While civil libertarians and conservatives who had their posts to social media deleted or throttled were disappointed, the ruling hinged on how far the government went in its efforts to scrub “disinformation” from social media, clearly differentiating using the bully pulpit or “jawboning” companies to adhere to the government’s wishes from ordering censorship of disfavored opinions or information.
And of course, it didn’t help that Leftwing executives at social media companies were looking for excuses to censor opinions that did not comport with their progovernment agenda, so they required little in the way of encouragement to do so.
The Supreme Court has often used the procedural question of “standing” to dispose of cases without ruling on the merits of the claims. The opinion, while definitely setting a high bar for future litigation on the subject of third-party social media censorship, did not foreclose future litigation should the government cross the line into orders or threats to get content it doesn’t like removed.
What is required now are relentless demands for transparency and whistleblowing to alert the public, through freedom of information requests and congressional investigations, should the government move into the prohibited area of coercing third-parties into censoring social media on its behalf. The case was Murthy, Surgeon General, et al. v. Missouri et al.
Supreme Court
First Amendment
Censorship
COVID policy
Anthony Fauci
Social Media platforms
misinformation
free speech
Justice Amy Coney Barrett
Facebook
Twitter X
content moderation
conservative speech
2020 Election
Justice Samuel Alito dissent
third-party social media censorship
standing