SCOTUS nixes injunction that limited Biden admin contacts with social networks

On Wednesday, the Supreme Court tossed out claims that the Biden administration coerced social media platforms into censoring users by removing COVID-19 and election-related content.

Complaints alleging that high-ranking government officials were censoring conservatives had previously convinced a lower court to order an injunction limiting the Biden administration's contacts with platforms. But now that injunction has been overturned, re-opening lines of communication just ahead of the 2024 elections—when officials will once again be closely monitoring the spread of misinformation online targeted at voters.

In a 6–3 vote, the majority ruled that none of the plaintiffs suing—including five social media users and Republican attorneys general in Louisiana and Missouri—had standing. They had alleged that the government had "pressured the platforms to censor their speech in violation of the First Amendment," demanding an injunction to stop any future censorship.

Plaintiffs may have succeeded if they were instead seeking damages for past harms. But in her opinion, Justice Amy Coney Barrett wrote that partly because the Biden administration seemingly stopped influencing platforms' content policies in 2022, none of the plaintiffs could show evidence of a "substantial risk that, in the near future, they will suffer an injury that is traceable" to any government official. Thus, they did not seem to face "a real and immediate threat of repeated injury," Barrett wrote.

"Without proof of an ongoing pressure campaign, it is entirely speculative that the platforms’ future moderation decisions will be attributable, even in part," to government officials, Barrett wrote, finding that an injunction would do little to prevent future censorship.

Instead, plaintiffs’ claims "depend on the platforms’ actions," Barrett emphasized, "yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts."

"It is a bedrock principle that a federal court cannot redress 'injury that results from the independent action of some third party not before the court,'" Barrett wrote.

Barrett repeatedly noted "weak" arguments raised by plaintiffs, none of which could directly link their specific content removals with the Biden administration's pressure campaign urging platforms to remove vaccine or election misinformation.

According to Barrett, the lower court initially granting the injunction "glossed over complexities in the evidence," including the fact that "platforms began to suppress the plaintiffs’ COVID-19 content" before the government pressure campaign began. That's an issue, Barrett said, because standing to sue "requires a threshold showing 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."

"While the record reflects that the Government defendants 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," Barrett wrote.

Barrett was similarly unconvinced by arguments that plaintiffs risk platforms removing future content based on stricter moderation policies that were previously coerced by officials.

"Without evidence of continued pressure from the defendants, the platforms remain free to enforce, or not to enforce, their policies—even those tainted by initial governmental coercion," Barrett wrote.

Judge: SCOTUS “shirks duty” to defend free speech

Justices Clarence Thomas and Neil Gorsuch joined Samuel Alito in dissenting, arguing that "this is one of the most important free speech cases to reach this Court in years" and that the Supreme Court had an "obligation" to "tackle the free speech issue that the case presents."

"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.

Alito argued that the evidence showed that while "downright dangerous" speech was suppressed, so was "valuable speech." He agreed with the lower court that "a far-reaching and widespread censorship campaign" had been "conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID-19 on social media."

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

At least one plaintiff who opposed masking and vaccines, Jill Hines, was "indisputably injured," Alito wrote, arguing that evidence showed that she was censored more frequently after officials pressured Facebook into changing their policies.

"Top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured," Alito wrote.

While Barrett and the majority found that platforms were more likely responsible for injury, Alito disagreed, writing that with the threat of antitrust probes or Section 230 amendments, Facebook acted like "a subservient entity determined to stay in the good graces of a powerful taskmaster."

Alito wrote that the majority was "applying a new and heightened standard" by requiring plaintiffs to "untangle Government-caused censorship from censorship that Facebook might have undertaken anyway." In his view, it was enough that Hines showed that "one predictable effect of the officials’ action was that Facebook would modify its censorship policies in a way that affected her."

"When the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook’s censorship decisions," Alito wrote. "Nothing more is needed. What the Court seems to want are a series of ironclad links."

"That is regrettable," Alito said.

It’s complicated: Reactions to SCOTUS decision

Free speech advocates have expressed complicated feelings over the Supreme Court tossing the case. They had been hoping the nation's highest court would weigh the facts and make it easier to decide when platforms become state actors or clarify when the government can control online speech.

Supporting platforms, Carl Szabo, vice president and general counsel for NetChoice—a trade group representing platform owners including Meta—applauded the court for recognizing that "platforms have 'independent incentives to moderate content' separate from government influence." But Szabo also found Alito's dissenting opinion compelling.

"Justice Alito’s dissent additionally provides an important warning to Americans about the dangers of government controlling online speech," Szabo said. "It reinforces why NetChoice is dedicated to fighting to ensure the First Amendment rights of Americans and our businesses are protected from government overreach."

Similarly conflicted over the decision was Alex Abdo, the litigation director for the Knight First Amendment Institute, which is dedicated to defending free speech online and filed an amicus brief in the case urging "the Court to clarify the First Amendment limitations on government efforts to pressure speech intermediaries like the social media platforms into suppressing speech."

In a statement provided to Ars, Abdo said the court was "right to reverse" the lower court's decision but missed an opportunity to provide much-needed online speech guidance ahead of the next election.

"It is disappointing that we have so little guidance on the limits that the First Amendment places on government efforts to pressure social media platforms into suppressing speech," Abdo said. "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.”

But some advocates remain cautiously optimistic that the Supreme Court struck the right balance in tossing the case. The Center for Democracy & Technology (CDT), which also filed an amicus brief, had argued that while the "classic First Amendment concerns are raised by government involvement in social media services’ content moderation processes," not "every government communication to a social media service is either improper or unwise."

On Wednesday, CDT's vice president of policy, Samir Jain, provided a statement to Ars, praising the court for "demanding a high level of factual specificity showing that a platform’s decision to suppress a particular plaintiff’s speech was traceable to improper government pressure, as opposed to the platform’s own judgment."

"Hopefully, the Court’s decision will allow appropriate and useful interactions between government actors and social media platforms to resume, while incentivizing the government to take care that its communications are understood as informative or persuasive rather than threatening or coercive," Jain said.

To Jain, permanently ending government communications with platforms risked cutting platforms off from a valuable source of information when confronting waves of contentious and dangerous content online.

"The risk that government officials will improperly pressure platforms to censor speech is real," Jain said. "At the same time, government communications can provide useful information that lets platforms make more informed moderation decisions."