The Supreme Court on Wednesday rejected challenges to Biden administration officials’ communications with social media companies aimed at combating misinformation online.
The 6-3 decision does not address the First Amendment issues at the center of the cases and instead denies the challenge filed by two Republican attorneys general and private parties by finding they didn’t have legal standing to bring it.
“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different conduct,” Justice Amy Coney Barrett wrote for the majority. “This Court’s standing doctrine prevents us from ‘exercising such general legal oversight’ of other branches of Government.”
In his dissenting opinion, conservative Justice Samuel Alito — joined by Justices Clarence Thomas and Neil Gorsuch — scolded his fellow justices for failing to decide the issue based on its First Amendment implications.
“The Court, however, shirks that duty and thus 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,” Alito wrote. “That is regrettable.”
Barrett contended that that social media platforms have, “for years,” targeted false and misleading speech, pointing to false claims about elections being debunked as early as 2016 and public health falsities since 2018 — long before the 2020 presidential election misinformation or the COVID-19 pandemic picked up in the United States.
Alito zeroed in on the pandemic as a matter of “enormous medical, social, political, geopolitical and economic importance,” suggesting that the “free marketplace of ideas” was hindered by the social media companies’ moderation decisions.
“I assume a fair portion of what social media users had to say about COVID-19 and the pandemic was of little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed,” he argued. “That is what inevitably happens when entry to the marketplace of ideas is restricted.”
But when the plaintiffs faced speech restrictions, they frequently spanned platforms, topics and time frames, Barrett wrote. When those restrictions did line up, they also aligned with “independent incentives to moderate content,” she said.
“As discussed, the platforms began to suppress the plaintiffs’ COVID-19 content before the defendants’ challenged communications started, which complicates the plaintiffs’ effort to demonstrate that each platform acted due to ‘government-coerced enforcement’ of its policies,’ rather than its own judgment as an ‘independent actor,’” Barrett wrote.
The attorneys general and private parties accused the government of having “coordinated and colluded” with social media platforms to target conservative users and viewpoints.
The decision deals a blow to efforts to curb the government’s role in social media companies’ moderation of content spreading false or misleading information online. Attempts to police controversial posts about the legitimacy of the 2020 election and COVID-19 — which the attorneys general called a “campaign of censorship” — were at the heart of the case.
Barrett said that the attorneys general and private parties relied on allegations of past government censorship to prove that future censorship is imminent, but they failed to make their case.
“They fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms,” she wrote for the majority. “Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms.”
The 5th U.S. Circuit Court of Appeals previously found that the White House, FBI, Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency did cross the line into coercion.
Louisiana Solicitor General Benjamin Aguiñaga, who argued on behalf of the states in March, asserted that, in most circumstances, the government should not ask platforms to remove any content at all. Several justices pushed back against the sweeping contention, suggesting that the government’s responsibility to protect its citizens could sometimes outweigh their First Amendment rights.
The Justice Department argued that blocking communication between federal officials and social media companies could limit the government’s ability to address matters of public concern, prevent national security threats and relay information.
After the opinion’s release, First Amendment experts lamented a lack of clarity on the limitations of government efforts to quell speech deemed problematic.
“The platforms are attractive targets for official pressure, and so it’s crucial that the Supreme Court clarify the line between permissible attempts to persuade and impermissible attempts to coerce,” said Alex Abdo, litigation director of the Knight First Amendment Institute. “This guidance would have been especially valuable in the months leading up to the election.”
Updated 1:22 p.m. EDT
