The Supreme Court handed the Biden administration a major practical victory on Wednesday, rejecting a Republican challenge that sought to prevent the administration from communicating with social media platforms to combat disinformation.
The court ruled that the states and users who had challenged those interactions had not suffered the kind of direct injury that allowed them to sue.
The 6-3 ruling left open for another day fundamental questions about the limits the First Amendment places on the government’s power to influence the technology companies that are the primary gatekeepers of information in the Internet age.
The case arose out of a barrage of communications from administration officials urging the platforms to remove posts on topics such as the coronavirus vaccine and allegations of voter fraud. The attorneys general of Missouri and Louisiana, both Republicans, sued, along with three doctors, the owner of a right-wing website that often peddles conspiracy theories, and an activist concerned that Facebook sent her posts about alleged side effects of the coronavirus . vaccine.
“The plaintiffs, with no specific connection between their injuries and the defendants’ conduct, are asking us to review years of communications between dozens of federal officials, in different agencies, on different social media platforms, about different topics,” said Justice Amy. Connie Barrett wrote for the majority. “The settled doctrine of this court prevents us from exercising such general legal oversight of the other branches of government.”
Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, dissented.
“For months,” Justice Alito wrote, “high-ranking government officials have relentlessly pressured Facebook to stifle Americans’ free speech. Because the court unreasonably refuses to address this serious threat to the First Amendment, I respectfully dissent.”
The White House welcomed the decision. “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 Karine Jean-Pierre, a spokeswoman for White House. a statement.
Andrew Bailey, Missouri’s attorney general, said he would continue to try to “build the wall between technology and the state.”
“The record is clear: The deep state pressured and forced social media companies to take down true speech simply because it was conservative,” he said in a statement. “Today’s decision does not challenge that.”
By sidestepping the First Amendment issues in the case, Justice Alito wrote in his dissent, the court had impaired free speech.
“If the lower courts’ assessment of the voluminous record is correct,” he wrote, “this is one of the most important free speech cases to reach this court in years.”
The plaintiffs said many of the government’s contacts with social media companies violate the First Amendment. Judge Barrett did not consider this argument. But in a particularly pointed footnote, he criticized Judge Terry A. Doughty of the Federal District Court for the Western District of Louisiana, who had issued an order barring further contact to deal with what he said could be “the most massive attack on of free speech in the history of the United States.”
Judge Barrett wrote critically of Judge Doughty’s “factual findings, many of which unfortunately appear to be clearly erroneous.” Among her examples was a purported “censorship request” by the administration referred to in the judge’s opinion.
“The record he cites says nothing about ‘censorship requests,'” Judge Barrett wrote. “Rather, in response to a White House official asking Twitter to remove an account impersonating President Biden’s granddaughter, Twitter told the official a portal he could use to flag similar issues.”
In dissent, Justice Alito appeared ready to accept Justice Doughty’s findings, along with their implications.
“Our country’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 marketplace of ideas requires that dissenting opinions on such matters be allowed,” he wrote. “I guess a fair share of what social media users had to say about Covid-19 and the pandemic had little lasting value. Some were undoubtedly untrue or misleading, and some may have been downright dangerous. But now we know that precious speech was also suppressed.”
He elaborated on this last point in a footnote on the debate over the origin of the virus, citing evidence that it had leaked from a laboratory. That theory, long held by many conservatives who argue that China has shirked responsibility for the pandemic, is now generally acknowledged to be plausible if not proven.
Judge Doughty, who was appointed by President Donald J. Trump, issued a 10-part order barring countless officials from “threatening, pressuring or coercing social media companies in any way to remove, delete, suppress or reduce the published content of posts that contain protected free speech.”
A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans narrowed the order, but not by much.
The commission, in an unsigned opinion, said administrators had become overly involved with the platforms or used threats to induce them to act. The panel issued an order barring several officials from coercing or significantly 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, Judge Don R. Willett, was appointed by Mr. Trump.
Judge Barrett wrote that the plaintiffs failed to overcome at least two formidable hurdles in their attempt to establish what is required to show standing: that the government had caused their injuries and that they faced a prospect of future injury.
The first problem, he said, was that social media companies were independent actors with a proven commitment to tackling disinformation before and apart from government encouragement.
Second, he said, no matter what happened in the past, especially amid the pandemic, a plaintiff seeking injunctive relief must prove a real threat of future injury.
Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Ketanji Brown Jackson joined the majority opinion.
In dissent, Justice Alito focused on the experience of Jill Hines, a health care activist who helped run Health Freedom Louisiana, a group that opposed mask and vaccine mandates.
“Hines showed that, when she sued, Facebook was censoring her Covid-related posts and groups,” Justice Alito wrote. “And because the White House pushed Facebook to modify its censorship policies, the censorship of Hines was, at least in part, caused by the White House and could be remedied by an injunction against the continuation of that conduct.”
In May, the court unanimously ruled in favor of the National Rifle Association in a case that raised similar issues. In that case, NRA v. Vullo, the justices said the group could bring a First Amendment claim against a New York State official who had encouraged companies to stop doing business with him.
That decision, coupled with that in Wednesday’s case, Murthy v. Missouri, No. 23-411, sent a troubling message, Justice Alito wrote.
“What officials did in this case was more subtle than the censorship found unconstitutional in Vullo, but no less coercive,” he wrote. “And because of the high positions of the perpetrators, it was even more dangerous.”
He added: “The officials who read today’s decision along with Vullo will get the message. If a campaign of coercion is carried out with sufficient sophistication, it can succeed. That is not a message this court should be sending.”
