The Supreme Court handed the Biden administration an important practical victory on Wednesday by rejecting a lawsuit from Republicans. This case sought to ban the government from contacting social media platforms to combat what it called disinformation.
The court found that the states and users who challenged these interactions had not suffered the kind of direct harm that gave them standing to sue.
The decision, by a vote of six to three, left fundamental questions about the limits the First Amendment places on the government’s power to influence the technology companies that are the key gatekeepers of information in the Internet age.
The case emerged amid a barrage of communications from government officials urging platforms to remove posts on topics such as the coronavirus vaccine and claims of election fraud. The attorneys general of Missouri and Louisiana, both Republicans, along with three doctors, have charged the owner of a right-wing website that regularly markets conspiracy theories and an activist that Facebook had suppressed her posts about the alleged side effects of the coronavirus. vaccine.
“The plaintiffs, without any concrete connection between their injuries and the defendants’ conduct, are asking us to conduct a review of years of communications between dozens of federal officials, across different agencies, with different social media platforms, on different topics ” said Judge Amy. Coney Barrett wrote for the majority. “The settled doctrine of this court prevents us from exercising such general judicial oversight over the other branches of government.”
Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, dissented.
“For months,” Judge Alito wrote, “senior government officials exerted relentless pressure on Facebook to suppress America’s freedom of speech. Because the court improperly declines to address this serious threat to the First Amendment, I respectfully dissent.”
The White House welcomed the ruling. “The Supreme Court’s decision is the right one and helps ensure that the Biden administration can continue our important work with technology companies to protect the safety and security of the American people,” said White House Press Secretary Karine Jean-Pierre . a statement.
Missouri Attorney General Andrew Bailey said he would continue to try to “build the wall of separation between technology and state.”
“It is clear: the deep state has pressured and forced social media companies to remove truthful statements simply because they were conservative,” he said in a statement“Today’s ruling does not dispute that.”
By sidestepping the First Amendment issues in this case, Justice Alito wrote in his dissent that the court had violated free speech rights.
“If the lower courts’ review of the voluminous record is correct,” he wrote, “this is one of the most important free speech cases this court has reached in years.”
The plaintiffs said that many of the government’s dealings with the social media companies violated the First Amendment; Judge Barrett did not address that argument. But in a remarkably sharp footnote, she criticized Judge Terry A. Doughty of the Federal District Court for the Western District of Louisiana, which issued an order barring further contact to address what he said could be “the most massive attack on free speech in the history of the United States.”
Judge Barrett wrote critically of Judge Doughty’s “factual findings, many of which, unfortunately, turn out to be clearly incorrect.” One of her examples was an alleged government “censorship request,” which was cited in the judge’s ruling.
“The record cited therein says nothing about ‘censorship requests,’” Judge Barrett wrote. “To the contrary, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal he could use to flag similar problems.”
Judge Alito appeared willing to accept Judge Doughty’s findings, including their implications.
“Our nation’s response to the Covid-19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our commitment to a free market in ideas requires that dissenting opinions on such matters be allowed,” he wrote. “I would assume that a fair amount of what social media users had to say about Covid-19 and the pandemic had little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was suppressed as well.”
He elaborated on that last point in a footnote on the debate over the origins of the virus, citing evidence that it had leaked from a laboratory. That theory, long embraced by many conservatives who argue that China evaded responsibility for the pandemic, is now widely recognized as plausible, though unproven.
Judge Doughty, appointed by President Donald J. Trump, delivered the ruling a 10-part command which prohibited numerous officials from “threatening, pressuring, or coercing social media companies in any way to remove, delete, suppress, or diminish posted content that contains protected freedom of expression.”
A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans limited the order, but not by much.
The panel, in an unsigned opinionsaid government officials had excessively entangled with the platforms or used threats to goad them into action. The panel issued an order barring many officials from coercing or significantly encouraging social media companies to remove content protected by the First Amendment.
Two members of the panel, judges Edith B. Clement And Jennifer W. Elrod, were appointed by President George W. Bush. The third, Judge Don R. Willettwas appointed by Mr. Trump.
Judge Barrett wrote that the plaintiffs had failed to clear at least two hurdles in their attempt to establish what was necessary to prevail: that the government had caused their injuries and that they faced the prospect of future harm.
The first problem, she said, was that the social media companies were independent actors with a demonstrable commitment to tackling disinformation, even if not encouraged by governments.
Second, she said, whatever may have happened in the past, especially in the midst of the pandemic, a plaintiff seeking an injunction must show there is a real threat of future harm.
Chief Justice John G. Roberts Jr. 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 opposed mask and vaccine mandates.
“Hines showed that when she filed suit, Facebook was censoring her Covid-related posts and groups,” Justice Alito wrote. “And because the White House pushed Facebook to change its censorship policies, Hines’ censorship was, at least in part, caused by the White House and could be remedied by an injunction against continued conduct.”
In May, the court unanimously ruled in favor of the National Rifle Association in a case involving similar issues. In that case, NRA against Vullothe justices said the group could have a First Amendment claim against a New York State official who had encouraged companies to stop doing business with the group.
That ruling, along with Wednesday’s decision in Murthy v. Missouri, No. 23-411, sent a troubling message, Justice Alito wrote.
“What officials did in this case was more subtle than the unconstitutional censorship found unconstitutional in Vullo, but it was no less coercive,” he wrote. “And the high positions of the perpetrators made it even more dangerous.”
He added: “Officers who read today’s decision with Vullo will understand the message. If a campaign of coercion is carried out with sufficient sophistication, it can succeed. That is not the message this court should be sending.”
