The case began with Biden Administration officials engaging in frequent meetings and communications with internet platforms, where the officials were bombarding the platforms with suggestions or requests or pressure or demands that they remove certain posts, primarily related to pandemic-related policies and claims of 2020 election fraud. It is important to note how the Administration’s varying approaches to the platforms are characterized, particularly whether they were coercive.
The U.S. Fifth Circuit Court of Appeals largely upheld a district court’s broad injunction barring communications between the federal government and the platforms, finding that the administration’s choice of words (President Biden said the platforms are “killing people”) and tone implying negative consequences for non-compliance (the platforms benefit from statutory protections) amounted to censorship.
The majority dissented in an opinion written by Justice Amy Coney Barrett, joined by two conservative justices, Justices John G. Roberts Jr. and Brett M. Kavanaugh, and three liberal justices, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson.
Barrett said the plaintiffs, two states and five social media users, lacked standing to sue because they had failed to show a “specific connection” between the Biden administration’s interactions with the platforms and the harms they allegedly suffered at the platforms. She also said the court should not closely monitor the interactions of “dozens” of officials and different agencies on different platforms over the course of years about a variety of topics.
Her detailed arguments reflected the conservative principle of judicial restraint — that it is inappropriate for the court to exercise harsh scrutiny over the other branch. Barrett said the plaintiffs had failed to prove that specific government pressure for specific policies stifled the speech of specific plaintiffs.
Justice Samuel A. Alito Jr., in a dissenting opinion joined by fellow conservatives Clarence Thomas and Neil M. Gorsuch, illustrated the conservative principle that judicial restraint can be a dereliction of its duty of “judicial involvement” in other branches of government actions that violate constitutional rights. Justice Alito marshals strong evidence that the government’s “severe reprimands” of Facebook led the company to apologize and “wriggle soft” as a “subordinate entity” determined to act “in concert” with a “powerful overseer.”
This case, like many others, required the Court to balance competing powers and rights. The federal government has the power to speak on a range of issues of public policy. But state governments have the power to speak to their constituents without encountering federally imposed social media interference. And while private social media companies’ content moderation decisions are not constrained by the First Amendment, individuals have a First Amendment right not to have their right to speech on the platforms restricted by government “encouragement” of censorship. In other words, through government coercion or collusion, the platforms effectively become appendages of the government.
The line between what constitutes permissible and unconstitutional government interference in social media cannot be vague or too broad, but it is up to judges to draw the line, including the line that defines free speech on the Internet.
The case came to the court as progressives argued that the First Amendment overly protects “harmful” speech, and that “harm” is defined broadly enough to include listener distress and social disorder. The three dissenters’ fears about government misconduct are understandable, but they may have another chance at a majority.
“We begin and end by standing up,” Barrett wrote for the majority.At this stage“Neither the private nor the state plaintiffs have established any right to seek injunctive relief against any of the defendants.” (Emphasis added.) There are probably other steps.
Governments are constantly in communication with social media platforms to influence content moderation decisions that they believe are important to national security, public health, election integrity, and a variety of other matters. As such, the issues in this case may come up again in future cases for two reasons:
First, Wednesday’s decision hinged on a technical assessment of whether the plaintiffs were a party to the litigation. Second, the government’s desire to influence speech on the Internet will likely intensify.
The government is stepping up its crackdown on “misinformation,” “fake news,” and “unreliable content.” Biden’s spokesman said that unless platforms stop “spreading” such information, they could face legal action, including antitrust enforcement. These attempts to regulate online speech will continue until the influence of social media weakens.
But their influence is growing, and their interactions with the government will likely generate new judicial controversies. Thus, Alito, Thomas, and Gorsuch’s positions may become those of the conservative “camp,” and therefore of the Court.
