Supreme Court tosses out claim Biden administration coerced social media companies to remove content

WASHINGTON — The Supreme Court on Wednesday threw out claims that the Biden administration unlawfully coerced social media companies into removing contentious content.

In reaching its conclusion, the court overturned an injunction that would have limited contacts between government officials and social media companies on a wide range of issues if allowed to go into effect. The Supreme Court had previously put the injunction on hold.

White House press secretary Karine Jean-Pierre welcomed the ruling, saying it will help the administration “continue our important work with technology companies to protect the safety and security of the American people, after years of Republican attacks on public officials who engaged in critical work to keep Americans safe.”

The court on a 6-3 vote found that plaintiffs did not have standing to sue in part because they had failed to adequately allege that the content moderation at issue was as a result of government actions.

Writing for the majority, conservative Justice Amy Coney Barrett said the plaintiffs, Republican attorneys general in Louisiana and Missouri, along with five social media users, had failed to show they had suffered harm at the hands of specific government officials.

She noted that social media platforms routinely moderated content even before the alleged coercion happened.

“In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the government defendants got involved,” she added.

While the evidence shows government officials “played a role” in moderation choices, that is not enough to justify a sweeping injunction, Barrett wrote.

The plaintiffs also failed to show that previous examples of content moderation could be linked to the communications government officials had with the platforms, she added.

The states, for example, alleged that a Louisiana state representative’s Facebook post about the Covid-19 vaccine was restricted because of government intervention, but Barrett said there was “no evidence to support the states’ allegation.”

Justice Samuel Alito wrote a sharp dissent, joined by two other conservatives, Justice Clarence Thomas and Justice Neil Gorsuch.

Alito suggested the dispute was “one of the most important free speech cases to reach this court in years,” saying the government actions were “blatantly unconstitutional.”

The majority “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,” he added. That the coercion was “more subtle” than other examples made it “even more dangerous,” Alito said.

Jenin Younes, a lawyer at the New Civil Liberties Alliance who represents the individual plaintiffs, said that the court had “green-lighted the government’s unprecedented censorship regime.”

Her clients include doctors who questioned Covid-19 policies and Jim Hoft, founder of The Gateway Pundit, a right-wing news site.

Hoft had claimed that posts about a notorious laptop owned by Hunter Biden, President Joe Biden’s son, were suppressed. But Barrett wrote in Wednesday’s ruling that there was no evidence to show that content moderation decisions could be traced to the FBI or the Cybersecurity and Infrastructure Security Agency, as he claimed.

Barrett pointed out that Hoft cited an allegedly censored post written by his brother, not one he wrote himself, which was another reason why he could not show harm.

Alito focused on another plaintiff, health activist Jill Hines, who Barrett agreed had the best argument for standing.

Hines was subject to content moderation by Facebook over posts she wrote questioning pandemic health guidance, including the use of vaccines, at a time the government was communicating with social media companies on the spread of misinformation. She also reposted content from vaccine skeptic and independent presidential candidate Robert F. Kennedy Jr.

Alito wrote that it is “reasonable to infer … that the efforts of the federal officials affected at least some of Facebook’s decisions to censor Hines.”

A Justice Department spokesman declined to comment.

The plaintiffs filed the underlying lawsuit alleging that U.S. government officials went too far in putting pressure on platforms to moderate content.

The lawsuit included various claims relating to activities that occurred in 2020 and before, including efforts to deter the spread of false information about Covid and the presidential election. Donald Trump was president at the time, but the district court ruling focused on actions taken by the government after Joe Biden took office in January 2021.

In July last year, Louisiana-based U.S. District Judge Terry Doughty barred officials from “communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”

The New Orleans-based 5th U.S. Circuit Court of Appeals later narrowed the scope of Doughty’s injunction. But the appeals court still required the White House, the FBI and top health officials not to “coerce or significantly encourage” social media companies to remove content the Biden administration considered misinformation.

The case is one of two that the justices decided this term on the practice known as “jawboning,” in which the government leans on private parties to do what it wants, sometimes with the implicit threat of adverse consequences if demands are not met.

In the other case, the court ruled in favor of the National Rifle Association, which claims that a New York state official unlawfully pressured companies to cease doing business with the gun rights group.

Those challenging the government actions say that in each case there was a violation of the Constitution’s First Amendment, which protects free speech rights.

Alex Abdo, litigation director at the Knight First Amendment Institute at Colombia University, which has raised concerns about the dangers of jawboning, said the court missed an opportunity to clarify the law on the issue.

“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,” he said. “This guidance would have been especially valuable in the months leading up to the election.”