Supreme Court ducks red states’ challenge to social media censorship

The Supreme Court avoided a major ruling on internet censorship Wednesday, reasoning that the states and social media users who sued the government didn’t prove they had legal standing to bring the case.

Missouri, Louisiana and five social media users argued that technology companies suppressed social media posts about the COVID-19 pandemic and the 2020 presidential election at the urging of Biden administration officials in violation of their First Amendment rights.

In a 6-3 decision, the court said the plaintiffs never proved a direct link between government concerns and social media platforms’ actions. The ruling leaves the government free to lobby social media companies to elevate some views over others.

Justice Amy Coney Barrett, writing for the majority, said plenty of evidence showed that the White House, the surgeon general, the Centers for Disease Control and Prevention and other federal actors were communicating with social media companies such as Facebook and Twitter about what was appearing on their platforms.

Still, she said the plaintiffs never proved a “specific causation” linking federal pressure to the companies’ suppression of posts.

“This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,” she wrote in an opinion joined by Chief Justice John G. Roberts Jr., Justice Brett M. Kavanaugh and the court’s three Democratic appointees.

Justice Samuel A. Alito Jr., writing in dissent, said the weight of evidence was compelling enough to draw the connections between government complaints to the social media companies and their subsequent suppression of posts.

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

Rick Manning, president of Americans for Limited Government, said the Supreme Court was protecting government censors.

“It is appalling that the Supreme Court failed to rein in the intelligence and law enforcement agencies’ abuse of individual First Amendment rights,” he said. “The Supreme Court’s cowardice in the face of a direct assault by the federal government on First Amendment rights using Silicon Valley cutouts is a black mark on an institution that the left is seeking to destroy.”

The Knight First Amendment Institute said the court made the correct decision given the facts of the case, but Alex Abdo, litigation director, said ​the justices would ​have to grapple with the underlying questions of government-social media censorship and collusion sooner or later.

“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. This guidance would have been especially valuable in the months leading up to the election,” he said.

Even in defeat, the plaintiffs in the case claimed success. Through the legal discovery process, they uncovered startling back-channel efforts by federal officials to have their views prevail in the online debate, particularly surrounding COVID-19.

The documents showed some social media firms to be strikingly compliant.

One White House official said he was “gravely concerned” that Facebook was driving “vaccine hesitancy” and demanded that the company solve the problem.

“We want to know that you’re not playing a shell game with us when we ask you what is going on,” wrote Rob Flaherty, the White House director of digital strategy.

Another warned that White House officials were “considering our options on what to do.”

Facebook promised changes to “gain your trust.”

Those sorts of exchanges led a district court to issue a sweeping injunction against some federal officials’ communications with social media companies.

The 5th U.S. Circuit Court of Appeals agreed that the government’s actions amounted to censorship but narrowed the injunction.

The Supreme Court said Wednesday that the lower courts were wrongly swayed by the unseemly back-and-forth.

Justice Barrett concluded that the plaintiffs never proved that any of those White House or other federal officials’ communications led to the censorship of their specific posts, undercutting their case for an injunction.

“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,” Justice Barrett wrote for the court. “Because no plaintiff has carried that burden, none has standing.”

Justice Alito said the court’s message was that “subtle” censorship can carry the day.

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

Legal analysts said the court’s ruling leaves those questions for another day.

Missouri Attorney General Andrew Bailey, a Republican, said the decision left the door open for him to obtain more discovery on the federal government’s work with social media companies.

“The record is clear: the deep state pressured and coerced social media companies to take down truthful speech simply because it was conservative. Today’s ruling does not dispute that,” Mr. Bailey said. “My rallying cry to disappointed Americans is this: Missouri is not done. We are going back to the district court to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all.”

Sen. Mark R. Warner, Virginia Democrat and chairman of the Senate Select Committee on Intelligence, said he wants more government cooperation with social media.

“Glad to avert a catastrophic outcome here, but today’s ruling is only a partial victory,” Mr. Warner said on X. “We need to permanently protect the ability for [the U.S. government] to share vital information with U.S. communications platforms about foreign-based threats – as the Senate Intel Committee’s bipartisan investigation concluded. It’s essential to the security of our election & our nation.”