Remove disinformation

Supreme Court allows White House to press social media companies to remove disinformation

By John Fritze and Brian Fung

The Supreme Court on Wednesday said the White House and federal agencies such as the FBI may continue to urge social media platforms to take down content the government views as misinformation, handing the Biden administration a technical if important election-year victory.

Of immediate significance, the decision means that the Department of Homeland Security may continue to flag posts to social media companies such as Facebook and X that it believes may be the work of foreign agents seeking to disrupt this year’s presidential race.

Rather than delving into the weighty First Amendment questions raised by the case, the court ruled that the state and social media users who challenged the Biden administration did not have standing to sue.

Justice Amy Coney Barrett wrote the opinion for a 6-3 majority.

“To establish standing, the 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 wrote. “Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.”

Biden administration officials have for years tried to persuade social media platforms to take down posts featuring misinformation about vaccines, the Covid-19 pandemic and the 2020 election, among other things. Many of those posts, the government has said, ran afoul of the platforms’ own stated policies.

Republican officials in two states – Missouri and Louisiana – and five social media users sued over that practice in 2022, arguing that the White House did far more than “persuade” the tech giants to take down a few deceptive items. Instead, they said, the Biden administration engaged in an informal, backdoor campaign of coercion to silence voices it disagreed with – a practice known as “jawboning.”

They pointed to the decision by social media companies to suppress coverage of Hunter Biden’s laptop in late 2020 as evidence of unconstitutional government influence. But internal communications related to Twitter’s handling of the laptop story highlighted how high-level company officials were divided on whether to suppress coverage of the story, contrary to suggestions by some critics that the platform demoted it because of government pressure.

The plaintiffs also claimed the FBI leaned on platforms to remove content it identified as “foreign” when the posts were, in fact, written by Americans.

Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson were in the 6-3 majority.

Alito says court is ignoring threats to free speech

Justice Samel Alito, joined by Justice Clarence Thomas and Justice Neil Gorsuch, wrote a dissent that dubbed the case “one of the most important free speech cases to reach this Court in years.”

He said the challengers had brought forward enough evidence to establish standing.

“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.”

He called the conduct of the officials sued in the case “unconstitutional,” “coercive” and “dangerous.”

“It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so,” Alito wrote.

His 34-page dissent went through the details of the case as he sought to counter the court’s conclusions that the challengers’ lacked standing, while also addressing the merits of their claims.

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent,” Alito said.

Biden administration was blocked last year

The case challenged the US government’s ability to shape public debates about major issues that once played out in newspaper op-ed pages but that now largely unfold online. And it questioned the government’s power to partner with private-sector organizations to combat large-scale societal threats.

The government argued that the social media plaintiffs didn’t have standing to sue, in part because their content was “moderated” before the administration started flagging suspect posts to the platforms. The Biden administration argued that the states also lacked standing, in part because they relied on a “a handful of past incidents of content moderation, unconnected to any specific governmental actions.”

A federal judge in Louisiana who initially reviewed the case blocked the White House and a slew of federal agencies from communicating with social media companies about removing content in a sweeping preliminary injunction last year.

A three-judge panel of the conservative 5th US Circuit Court of Appeals scaled back the injunction last fall, narrowing its scope to a few agencies it said likely violated the First Amendment: The White House, US Surgeon General Vivek Murthy, the Centers for Disease Control and Prevention, the Cybersecurity and Infrastructure Security Agency and the FBI.

The New Civil Liberties Alliance, which represented the private plaintiffs in the case, framed the decision as declaring “open season on Americans’ free speech rights.”

“The government can press third parties to silence you, but the Supreme Court will not find you have standing to complain about it absent them referring to you by name apparently,” said the group’s senior litigation counsel, John Vecchione. “This is a bad day for the First Amendment.”

But other groups said the decision struck a balance between free speech and public safety online.

Wednesday’s decision highlights online platforms’ responsibility to the public, said Sacha Haworth, executive director of the Tech Oversight Project, a group that has been critical of the tech industry.

“This ruling correctly affirms the federal government’s right to notify the platforms about credible digital threats from foreign and domestic actors and puts the onus on tech companies to take those threats seriously,” Haworth said.

Google and Meta declined to comment.

Another defeat for the 5th Circuit

The opinion is another sign the Supreme Court may be exasperated with the 5th Circuit, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. Earlier this month, the court rejected an attempt to block the use of the abortion pill mifepristone.

“For the second time in 13 days, a cross-ideological majority has thrown out a controversial lawsuit that right-wing plaintiffs had deliberately steered to the 5th Circuit,” Vladeck said.

“Just like in the mifepristone case, the lawsuit was brought in a single-judge division; the district court entered nationwide relief; the 5th Circuit upheld much of the relief; and the Supreme Court held that these plaintiffs should never have been allowed to bring this case in the first place,” Vladeck added. “The real question is whether, given this pattern, the lower courts in Louisiana, Mississippi, and Texas actually get the message.”

During oral arguments in March, several of the court’s conservatives appeared skeptical of the states’ position.

In a series of hypothetical questions, Roberts, Kavanaugh and Barrett signaled concern about setting a standard that restricted the government’s ability to communicate with the platforms over content that might be problematic. That might include, the justices theorized, social media threats targeting public figures or disclosures of sensitive information about US troops.

The case arrived at the high court at a time when the government has repeatedly warned of foreign efforts to use social media to influence elections. The Director of National Intelligence predicted in February that China’s “growing efforts to actively exploit perceived US societal divisions using its online personas” would “move closer to Moscow’s playbook” this year.

The jawboning case was one of several high-profile matters the court is deciding at intersection of the First Amendment and social media. In another, officials in Florida and Texas are defending separate laws designed to bar the platforms from throttling conservative views.

Alito returns to Supreme Court for opinion but Gorsuch absent

Alito returned to the Supreme Court bench on Wednesday after missing two days last week. But Justice Neil Gorsuch, a fellow conservative, did not appear as the court handed down two opinions.

A spokeswoman for the court did not immediately respond to a request for comment about Gorsuch on Wednesday. The court did not say why Alito had been absent.