Supreme Court sidesteps claim that Biden administration coerced social media censorship

In a long-anticipated ruling Wednesday, the Supreme Court set aside a September 2023 decision by the 5th U.S. Circuit Court of Appeals that blocked a host of federal agencies from influencing social media platforms’ content moderation decisions.

Republican attorneys general in Louisiana and Missouri, along with several individuals censored by the platforms, filed the lawsuits. Two of the plaintiffs, infectious disease epidemiologists Dr. Jayanta Bhattacharya and Dr. Martin Kulldorff, co-authored the Great Barrington Declaration, a 2020 statement that expressed concern about the damaging physical and mental health effects of COVID-19 lockdowns.

Another plaintiff in Murthy v. Missouri is Jill Hines, co-director of Health Freedom Louisiana, an organization that advocated against vaccine and mask mandates during the pandemic. Even the ruling’s majority agreed that Facebook targeted and censored Hines.

But for Justice Amy Coney Barrett, who authored the 6-3 majority opinion, neither the two states nor the individuals who filed the lawsuit put forth enough evidence that the governmental actors they sued caused their censorship by social media platforms.

“We begin—and end—with standing,” wrote Barrett, who was joined by Chief Justice John Roberts, fellow conservative Justice Brett Kavanaugh, and the three members of the liberal wing of the court. Brushing aside the 5th Circuit ruling as “wrong,” Barrett reiterated what standing requires. “Plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a government defendant and redressable by the injunction they seek,” Barrett summarized.

After noting that that requirement is a “tall order,” Barrett proceeded to find that no plaintiff could demonstrate that a particular governmental agency was behind a social media restriction, as the findings of the lower courts were general and not specific. More than that, Barrett concluded that the platforms—which were not sued and not subject to the First Amendment—had independent reasons for censoring content and did so even prior to the Biden administration’s campaign of influence.

“To be sure, the record reflects that the government defendants played a role in at least some of the platforms’ moderation choices,” Barrett conceded. “But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.”

Where the 5th Circuit saw a forest of governmental censorship, Barrett focused on individual trees—on the particular. “For every defendant, there must be at least one plaintiff with standing to seek an injunction,” she wrote. “This requires a certain threshold showing: namely, that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff ’s speech on that topic.”

In a dissenting opinion joined by Justices Clarence Thomas and Neil Gorsuch, Justice Samuel Alito chided the majority for allowing a campaign of government censorship to pass. Alito contrasted governmental pressure on Facebook with a New York official’s urging of banks and insurance companies not to do business with the National Rifle Association.

“What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in [National Rifle Association v.] Vullo, but it was no less coercive,” wrote Alito. “And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by.”

Alito got specific, culling damning communications from the extensive record that supported his claim of government coercion and censorship, of a Facebook kowtowing to White House demands. “In sum, the officials wielded potent authority,” he concluded. “Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield.”

Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, echoed Alito’s critique of a majority that refused to see the forest for the trees. “Despite reams of evidence documenting government pressure, the court held today these plaintiffs lacked standing to sue. FIRE is concerned about what this means for future First Amendment plaintiffs.” The Philadelphia-based free speech organization supported the plaintiffs in a friend-of-the-court brief filed earlier this year.

The court’s reluctance to wade into the challenges posed by what some have derided as the “censorship industrial complex,” a ubiquitous if controversial linkage of government and private companies, may reflect a Congress also divided about how to respond.

Jill Hines, one of the plaintiffs at the center of the dispute, reacted to the ruling with disappointment but also a plea: “Congress must act immediately to defund agencies and third parties actively involved in this broadly pervasive and unconstitutional censorship scheme.”

FIRE has proposed model legislation that, while not restricting government communication with social media companies, would require disclosure of communications. As FIRE’s Corn-Revere summed up, “A little bit of sunlight would go a long way toward ending the censorship by coercion at issue here.”