The feds can notify social media platforms about posts they believe violate the sites' policies and suggest they be removed, but you can't bring a First Amendment case unless there's actual "do this or else" coercion by the government, the Supreme Court ruled today.
The opinion (PDF) released Wednesday overturns a September 2023 ruling by the US Court of Appeals for the Fifth Circuit that said executive-branch officials hectoring social platforms about content moderation violated the First Amendment.
That ruling modified a July 4, 2023, ruling from Judge Terry A. Doughty that imposed a gag order on dozens of federal officials across four cabinet departments and agencies such as the FBI, the Centers for Disease Control, and the Cybersecurity and Infrastructure Security Agency.
Writing for a 6-3 majority, Justice Amy Coney Barrett held that the plaintiffs had failed to prove government coercion when they sought a ban on federal officials asking or demanding particular content moderation practices.
"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," she wrote. "Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction."
The plaintiffs—originally the attorneys general of Missouri and Louisiana, later joined by Gateway Pundit publisher Jim Hoft; doctors Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriarty; and pandemic-restrictions opponent Jill Hines—had argued that federal officials under both the Trump and Biden administrations pressuring social platforms to demonetize or delete posts rose to the level of government censorship.
The postings in question violated existing platform rules against anti-vax, COVID, and election-integrity lies. In the case of Hoft’s Gateway Pundit—which Justice Barrett misleadingly calls "a news website"—his site violated a ban on publishing non-consensual intimate imagery by posting images from Hunter Biden’s lost laptop.
Judge Doughty agreed with the plaintiffs. He wrote in a 155-page opinion (PDF) that, if true, their allegations would make this case "the most massive attack against free speech in United States' history." It was a strange statement considering how, for example, President Woodrow Wilson’s administration leveraged the Sedition Act of 1918 to imprison Socialists.
Many First Amendment experts found Doughty’s opinion an overreach, and the Court of Appeals for the Fifth Circuit somewhat agreed. The Biden administration asked the Supreme Court to take the case in an application on behalf of Surgeon General Vivek Murthy and other affected officials, and the Court then stayed the appeals court’s restrictions while it took the case.
Justice Barett’s opinion underscores how those companies had already tightened existing rules against COVID and election disinformation policies before scoldings from Washington: "For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform."
And they did not take orders from the White House after said scoldings. "For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy,” she writes. “Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.”
In fewer words: It’s Facebook.com, not Facebook.gov.
In recent months, Facebook and X have further relaxed these rules; under Elon Musk, X has welcomed back some of the worst misinformation magnates, such as disgraced InfoWars publisher Alex Jones.
Justice Samuel A. Alito, Jr., wrote in a dissent that the majority opinion did not factor in the intimidation factor of content-removal demands from people in power.
"For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID-19-related speech,” he wrote. "The message sent with today’s opinion: 'If a coercive campaign is carried out with enough sophistication, it may get by.'"
The case was Murthy, Surgeon General, et al. v. Missouri et al. Barrett wrote for Chief Justice John G. Roberts, Jr., and Justices Elena Kagan, Brett M. Kavanaugh, Ketanji Brown Jackson, and Sonia Sotomayor. Alito’s dissent was joined by Justices Clarence Thomas and Neil M. Gorsuch.