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The U.S. Supreme Court building in Washington, DC, on April 23.
CNN
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The Supreme Court said Wednesday that the White House, the FBI and other federal agencies can still ask social media platforms to remove content the government considers to be misinformation, handing the Biden administration a key election-year victory on a technicality.
The immediate implication of the decision is that the Department of Homeland Security may continue to flag posts on Facebook, X and other social media companies that it believes are from foreign agents trying to interfere with this year’s presidential election.
Rather than delve into the serious First Amendment issues raised in the case, the court ruled that the states and social media users who challenged the Biden administration did not have the right to sue.
Justice Amy Coney Barrett wrote the opinion for the 6-3 majority.
“To be able to litigate, a plaintiff must demonstrate that it faces a substantial risk of harm from the government defendants in the near future that would be remedied by the preliminary injunction it seeks,” Barrett wrote. “Because no plaintiff has shouldered that burden, no one can litigate to seek a preliminary injunction.”
Biden administration officials have been trying for years to persuade social media platforms to remove posts containing misinformation about vaccines, the COVID-19 pandemic and the 2020 election, many of which the government says violate the platforms’ self-stated policies.
Five Republican officials and social media users from Missouri and Louisiana filed a lawsuit over the practice in 2022, arguing that the White House had done more than “persuade” the tech giants to remove a few false entries. Instead, they argued, the Biden administration engaged in an informal backdoor enforcement campaign, known as “jawboning,” to silence dissent.
They pointed to social media companies’ decisions to suppress coverage of Hunter Biden’s laptop in late 2020 as evidence of unconstitutional government influence. But Twitter’s internal communications about handling the laptop story highlighted how the company’s leadership was divided over whether to suppress the story, contrary to some critics’ view that Twitter downgraded the story due to government pressure.
The plaintiffs also alleged that the FBI pressured the platforms to remove content that it identified as “foreign” when in fact posts written by Americans.
The opinion, written by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson, was a 6-3 majority.
Justice Samuel Alito, writing a dissenting opinion joined by Justices Clarence Thomas and Neil Gorsuch, called the case “one of the most significant free speech cases to come before this Court in recent years.”
He said the plaintiffs had presented sufficient evidence to establish standing to sue.
“But the Court has failed in its duty, accepting the successful enforcement campaign in this case as an attractive model for future officials wishing to control what the public says, hears, and thinks,” Justice Alito wrote. “That is a shame.”
He described the actions of the officials accused in the case as “unconstitutional,” “coercive” and “dangerous.”
“It is clearly unconstitutional, and the nation may come to regret that the Supreme Court did not say so,” Justice Alito wrote.
In a 34-page dissenting opinion, the court argued that the plaintiffs lacked standing to sue, argued that their claims were valid, and discussed the details of the case.
“For months, government officials have exerted relentless pressure on Facebook to stifle Americans’ free speech. Because the Supreme Court has wrongfully refused to address this serious threat to the First Amendment, I respectfully dissent,” Justice Alito said.
The case raised questions about the U.S. government’s ability to shape public debate on major issues that once unfolded in newspaper opinion columns and now play out primarily online, as well as the government’s ability to partner with private organizations to combat large-scale societal threats.
The government argued that the social media plaintiffs lacked standing in part because their content was “moderated” before the administration began flagging questionable posts on social media platforms. The Biden administration argued that the states also lacked standing in part because they relied on “several prior cases of content moderation unrelated to any specific government action.”
The federal judge in Louisiana who first heard the case issued a sweeping preliminary injunction last year blocking the White House and numerous federal agencies from negotiating with social media companies to remove content.
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit narrowed the scope of the injunction last fall, focusing it on just a few agencies it said were likely to violate the First Amendment: the White House, 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, several conservative members of the Supreme Court expressed skepticism of the states’ position.
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In a series of hypothetical questions, Roberts, Kavanaugh and Barrett expressed concern about setting standards that would limit the government’s ability to communicate with platforms about potentially problematic content, which the justices speculated could include social media threats against public figures or leaks of classified information about the U.S. military.
The case came to the Supreme Court at a time when the government has repeatedly warned about foreign efforts to use social media to influence the election. The director of national intelligence predicted in February that China’s “increasing efforts to use online personas to aggressively exploit divisions in American society” will “move closer to Moscow’s playbook” this year.
The Jauboning case is one of several high-profile cases the Supreme Court is ruling on at the intersection of the First Amendment and social media. In a separate case, officials in Florida and Texas are defending separate laws banning social media from suppressing conservative voices.
This story has been updated with additional details.
