The Supreme Court threw out a challenge on June 26 to the federal government’s actions when it communicated with social media platforms about public health issues during the COVID-19 pandemic.
The justices voted 6–3, finding that two Republican-led states and several individuals challenging the government lacked legal standing to do so because they couldn’t show they were directly harmed by the government’s efforts to communicate with the platforms. Standing refers to the right of someone to sue in court. The parties must show a strong enough connection to the law or action complained of to justify their participation in the lawsuit.
The states had argued that the federal government strong-armed social media companies into censoring disfavored views on important public issues, such as side effects related to COVID-19 vaccines and the pandemic lockdowns. Applying this kind of pressure violates the First Amendment, the states said.
Conservatives and others have complained that social media platforms censor information about transgender issues, COVID-19, and the 2020 election. They were particularly concerned about coverage of Hunter Biden’s laptop computer that contained information they say might have harmed President Joe Biden’s 2020 election campaign had it been allowed to circulate freely.
Some on the left say removing posts on social media is necessary to prevent the spread of misinformation, and some have complained that social media platforms don’t do enough to combat falsehoods.
The petitioner, Dr. Vivek Murthy, is the U.S. surgeon general. The state of Missouri and other parties sued the federal government for censorship because it allegedly pressured social media companies to suppress certain content.
During the pandemic, Dr. Murthy issued a public statement encouraging the social media platforms to prevent so-called misinformation about COVID-19 “from taking hold.” The Centers for Disease Control and Prevention (CDC) flagged posts it deemed to be misinformation. The FBI and the Cybersecurity and Infrastructure Security Agency (CISA) communicated with the platforms about election-related misinformation in advance of the 2020 presidential election and the 2022 congressional elections.
Lower courts blocked the federal government’s efforts to communicate with the social media platforms about posted content. The Supreme Court initially halted the injunction against the government that was issued by a federal district court, and then later extended the block after the injunction was modified by the U.S. Court of Appeals for the Fifth Circuit.
The circuit court order stated that the federal government may not “coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”
During oral arguments on March 18, Louisiana Solicitor General Benjamin Aguiñaga said that “government censorship has no place in our democracy.”
The evidence shows that there was “unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans,” he said.
The federal district court described the government’s behavior as “the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.”
“The government’s levers of pressure are anathema to the First Amendment,” Mr. Aguiñaga said.
This wasn’t a case of the government accessing a “bully pulpit” to rally Americans to a cause—it was the government “just being a bully,” he said.
Brian Fletcher, principal deputy solicitor general of the United States, acknowledged that the government “may not use coercive threats to suppress speech,” but argued it was “entitled to speak for itself by informing, persuading, or criticizing private speakers.”
There is a “fundamental distinction between persuasion and coercion,” he said.
Majority Opinion
In the new majority opinion, Justice Barrett wrote that the two states and five individuals sued dozens of officials and agencies in the executive branch of the federal government, claiming they pressured social media platforms to suppress speech that was protected by the First Amendment.The Fifth Circuit agreed with the litigants, finding that the officials’ communications “rendered them responsible for the private platforms’ moderation decisions.” The circuit court then affirmed the “sweeping” preliminary injunction against the government, the justice wrote.
In doing so, the Fifth Circuit committed a legal error, she wrote.
To prove standing, plaintiffs must show there is “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. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.”
The Fifth Circuit held that “a private party’s conduct may be state action if the government coerced or significantly encouraged it,” she wrote. Governmental action regulating speech faces tough scrutiny under the Constitution.
That court found that White House officials, Dr. Murthy, and the FBI “likely both coerced and significantly encouraged the platforms to moderate content.” It also found that while the CDC and CISA encouraged the platforms to take certain actions, they didn’t coerce them.
Article III of the Constitution states that federal courts may only hear cases involving actual controversies in which at least one plaintiff has standing to sue, Justice Barrett wrote.
The challengers claimed they had standing because of the “direct censorship” of their own speech as well as their “right to listen” to others facing social media censorship, she wrote.
This is a problem because it focuses on the plaintiffs here who didn’t seek to enjoin the platforms from restricting any posts, instead of on the federal government pressuring the platforms to suppress First Amendment-protected speech, she wrote.
In other words, the challengers argued the injuries they suffered were “one-step-removed” and “anticipatory.” But it’s a “bedrock principle” that a federal court cannot redress “injury that results from the independent action of some third party not before the court,” she wrote.
The Supreme Court has been reluctant to endorse theories of standing “that require guesswork as to how independent decision-makers will exercise their judgment.”
Moreover, Justice Barrett wrote the Fifth Circuit erred when it “glossed over complexities in the evidence” by pointing at the federal government for “every platform decision” to moderate or suppress content.
The platforms consulted with outside experts, not the federal government alone, she wrote.
While the federal government “played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,” the justice added.
Dissenting Opinion
Justice Samuel Alito filed a dissenting opinion, which was joined by Justices Clarence Thomas and Neil Gorsuch.Justice Alito wrote that he dissented because the majority “unjustifiably refuses to address this serious threat to the First Amendment.”
“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech.”
The “victims” of this campaign filed suit to ensure the federal government “did not continue to coerce social media platforms to suppress speech.”
All the victims, including two states whose public health officials were prevented from sharing their expertise with state residents, distinguished professors of medicine, a news website operator, and a consumer and human rights advocacy organization, “simply wanted to speak out on a question of the utmost public importance,” Justice Alito wrote.
The Court “shirks” its duty and “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,” he wrote.
After the new decision was released, Missouri Attorney General Andrew Bailey, a Republican, said his office filed suit “to stop the biggest violation of the First Amendment in our nation’s history.”
“The record is clear: the deep state pressured and coerced social media companies to take down truthful speech simply because it was conservative,” he said in a written statement on his official website.
Mr. Bailey said Missouri would return to the federal district court to gather more evidence “to root out [President] Joe Biden’s vast censorship enterprise once and for all.”
Mr. Bailey also said Missouri cited more than 20,000 pages of documents to argue top federal officials pressured and colluded with social media companies to violate Americans’ right to free speech.
The Epoch Times asked the U.S. Department of Justice, which represented the federal government in the appeal, to comment on the new ruling and Mr. Bailey’s remarks, but it declined to do so.
“The department will decline to comment,” spokesman Terrence Clark said by email.
