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The Biden administration was granted a technical but significant election-year victory on Wednesday when the U.S. Supreme Court ruled that the White House and federal agencies, including the FBI, may continue to urge social media platforms to remove content that the government considers misinformation.
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 campaign. This decision is of immediate significance.
In a 6-3 ruling, the Court declined to address the significant First Amendment issues that the case raised, instead concluding that the state and social media users who opposed the Biden administration lacked the legal authority to file a lawsuit.
The opinion was authored by Justice Amy Coney Barrett and consisted of Chief Justice John Roberts, Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson. Justices Neil Gorsuch and Clarence Thomas joined Justice Samuel Alito in composing a dissenting opinion.
“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.”
CNN reported: “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’ 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 outlet added.
The plaintiffs also claimed that the FBI relied on platforms to remove content labeled as “foreign” when the posts were produced by Americans.
The case called into question the US government’s power to impact public debates about significant topics, which used to take place in newspaper op-ed pages but are now mostly conducted online. It also questioned the government’s ability to work with private-sector entities to fight large-scale social problems.
The government claimed that the social media plaintiffs lacked standing to sue, in part because their content was “moderated” before the administration began flagging problematic posts on the sites. The Biden administration claimed that the states lacked standing, citing “a handful of past incidents of content moderation, unconnected to any specific governmental actions.”
Last year, a federal judge in Louisiana issued a preliminary injunction that prevented the White House and other federal agencies from interacting with social media sites regarding content removal.
Last fall, a three-judge panel of the 5th US Circuit Court of Appeals reduced the scope of the injunction to a few agencies it believed 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.
During oral arguments in March, many conservative justices looked suspicious of the state’s case.
In a series of hypothetical inquiries, Roberts, Kavanaugh, and Barrett expressed worry about creating a norm that limited the government’s capacity to interact with platforms about potentially harmful information. According to the justices, this might include social media threats against public figures or the leaking of classified information about US forces.
The issue came before the Supreme Court at a time when the administration has repeatedly warned against foreign attempts to influence elections through social media. In February, the Director of National Intelligence anticipated that China’s “growing efforts to actively exploit perceived US societal divisions using its online personas” will “move closer to Moscow’s playbook” this year.
The jawboning case is one of several high-profile cases before the court that deal with the junction of the First Amendment and social media. In another case, officials in Florida and Texas are defending different laws that prohibit the platforms from censoring conservative content.
