The Supreme Court handed the Biden administration a major substantive victory Wednesday, rejecting a Republican challenge to block the government from reaching out to social media platforms to combat misinformation.
The court found that the states and users who challenged these interactions did not suffer direct harm that could merit a lawsuit.
The decision, decided by a 6-3 vote, again leaves open fundamental questions about what limits the First Amendment places on the government's power to influence technology companies, the primary gatekeepers of information in the Internet age.
The incident followed a barrage of communications from administration officials urging platforms to remove posts about topics such as coronavirus vaccines and claims of election fraud. The attorneys general of Missouri and Louisiana, both Republicans, filed the lawsuit along with three doctors, the owner of a right-wing website that frequently spreads conspiracy theories, and an activist who said he was concerned that Facebook had suppressed his posts about the side effects of the coronavirus. vaccine.
“Plaintiff asks that we review communications between dozens of federal employees over several years, across multiple agencies, on a variety of topics, and on a variety of social media platforms, without any specific connection between his injuries and defendants’ conduct,” Justice Amy Coney Barrett wrote for the majority. “This court’s standing doctrine prevents us from exercising general legal oversight over other branches of government.”
Samuel A. Alito Jr. The justices, along with Justices Clarence Thomas and Neil M. Gorsuch, dissented.
Justice Alito wrote: “For months, senior government officials have put relentless pressure on Facebook to suppress Americans’ free speech rights. “I respectfully disagree because the court has unjustly refused to address a serious threat to the First Amendment.”
The White House welcomed the ruling. “The Supreme Court’s decision is the right one and will help the Biden administration continue its critical partnership with technology companies to protect the safety and security of the American people,” White House press secretary Karine Jean-Pierre said in a statement.
Missouri Attorney General Andrew Bailey said he would continue to work “to build a wall of separation between technology and the state.”
“The record is clear: The deep state pressured and coerced social media companies into removing truthful speech simply because it was conservative,” he said in a statement. “Today’s ruling does not refute that.”
Justice Alito wrote that the court undermined free speech by avoiding First Amendment issues in this case.
“If my assessment of the lower court’s extensive record is accurate, this is one of the most significant free speech cases to reach this court in years,” he wrote.
The plaintiffs argued that many of the contacts between the government and social media companies violated the First Amendment. Judge Barrett did not comment on this claim. But in a particularly sharp footnote, she criticized Judge Terry A. Doty of the U.S. District Court for the Western District of Louisiana. Judge Doty issued a preliminary injunction banning further contact, saying it could be “the greatest assault on free speech in American history.”
Judge Barrett wrote critically of Judge Doughty's “many of her factual findings appear to be patently wrong.” Among her cases were alleged “censorship requests” from the administration, cited in the judge's opinion.
“The records cited make no mention of any ‘request for censorship,’” Judge Barrett wrote. “Rather, after White House officials asked Twitter to remove an account purporting to be President Biden’s granddaughter, Twitter responded by reporting similar concerns. “I spoke to the appropriate officials about the portal they could use.”
In his dissenting opinion, Justice Alito seemed prepared to accept Justice Doughty's findings and their implications.
“Our country’s response to the COVID-19 pandemic has been an issue of enormous medical, social, political, geopolitical, and economic significance, and our commitment to a free marketplace of ideas requires that dissent be allowed on such issues. .” wrote. “I think much of what social media users have said about COVID-19 and the pandemic has had little lasting value. Some were undoubtedly untrue or misleading, while others may have been downright dangerous. But now we know that valuable speech was also suppressed.”
He elaborated on that last point in a footnote to the debate about the virus's origins, citing evidence that the virus had leaked from a laboratory. This theory, long accepted by many conservatives who argue that China shirked responsibility for the pandemic, is now generally accepted as plausible, though unproven.
Judge Doughty, who was appointed by President Donald J. Trump, said numerous public officials “in any way threaten social media companies to remove, delete, suppress or curtail published content containing protected material; A 10-count injunction was issued prohibiting any use of pressure or coercion. Freedom of expression.”
A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans unanimously narrowed the injunction, but not by much.
In unsigned comments, the panel said administration officials were overly entangled with the platforms or used threats to call for action. The panel issued an injunction prohibiting many officials from forcing or substantially encouraging social media companies to remove content protected by the First Amendment.
Two members of the Commission, Judges Edith B. Clement and Jennifer W. Elrod, were appointed by President George W. Bush. The third member, Judge Don R. Willett, was appointed by President Trump.
Judge Barrett wrote that the plaintiffs failed to overcome at least two difficult obstacles in their attempt to prove what was needed to establish standing. In other words, the government caused the injury and faces the possibility of future injury.
She said the first problem is that social media companies have been independent actors who have shown a willingness to tackle misinformation before government encouragement.
Second, she said, no matter what happened in the past, especially during the pandemic, plaintiffs seeking an injunction must demonstrate a realistic threat of future harm.
John G. Roberts Jr. Chief Justice and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Ketanji Brown Jackson joined the majority opinion.
In his dissent, Justice Alito focused on the experience of Jill Hines, a health care activist who helped lead Health Freedom Louisiana, a group that opposes mask and vaccine mandates.
“Hines showed that Facebook was censoring his Covid-related posts and groups when he sued,” Justice Alito wrote. “And because the White House has called on Facebook to revise its censorship policies, Hines’ censorship is at least partially caused by the White House and can be corrected by an injunction prohibiting the continuation of such conduct.”
Last May, the court unanimously sided with the National Rifle Association in a case raising similar issues. In that case, NRA v. Vullo, the judge said the group could file a First Amendment lawsuit against New York state officials who encouraged it to stop doing business with the companies.
This ruling, along with Wednesday's Murty v. Missouri (No. 23-411), sent a shocking message, Justice Alito wrote.
“What officials did in this case was more subtle than the clumsy censorship found unconstitutional in Vullo, but it was no less coercive,” he wrote. “And it was even more dangerous because of the high status of the perpetrators.”
He said: “Stakeholders reading today’s decision with Vullo will get the message. If the coercive campaign is sufficiently sophisticated, it may be possible. “That is not the message this court should send.”