Supreme Court allows White House to request removal of misinformation on social media

The U.S. Supreme Court handed a major victory for the Biden administration Wednesday, throwing out a lower court ruling that had placed major restrictions on the ability of government officials to communicate with social media companies about their content moderation policies.

While the court’s ruling was procedural, it was nonetheless a stark repudiation of two lower courts in the South, and their eagerness to embrace conspiracy theories about alleged government coercion of social media companies.

Writing for a liberal-conservative coalition of six justices, Justice Amy Coney Barrett said that neither the five individuals nor the two states who sued the government had legal standing to be in court at all. She said they presented no proof to back up their claims that the government had pressured social media companies like Twitter and Facebook into restricting their speech. “Unfortunately,” she said, the Fifth Circuit court of appeals “relied on factual findings that are “clearly erroneous.”

For instance, she said, the plaintiffs who brought the case maintained that the White House had bombarded Twitter with requests to set up a streamlined process for censorship requests. But in fact, she said, the record showed no such requests. Rather, on one occasion a White House official asked Twitter to remove a fake account pretending to be the account of Biden’s granddaughter. Twitter took down the fake account and told the official about a portal that could be used in the future to flag similar issues.

“Justice Barrett went out of her way to stress that facts matter and that lower courts in this case embraced a fact-free version of what transpired between officials in the Biden administration and Facebook, Twitter and other social media companies,” said law professor Paul Barrett, no relation to the justice, who is deputy director of the Stern Center for Business and Human Rights at NYU.

In her opinion for the court majority, Justice Barrett said that at every turn, the alleged facts turned to dust, and that the plaintiffs had failed to trace past or potential future harm to anything done by officials at the White House, the CDC, the FBI, or a key cyber security agency. Indeed, the court said, many of the actions taken by the social media platforms to modify content about COVID vaccines or other matters, were taken before any contacts with government officials took place.

The court’s decision will make it considerably more difficult for people to bring challenges like this in the future because the justices said that it’s not enough to rail against the government for criticizing an individual’s message online. Rather, there has to be a causal link between the government’s commentary and what happens on a social media platform. In short, there has to be a traceable link, a link that the court said was entirely missing in this case, as the social media companies had their own incentives for moderating content, and often exercised their own judgment.

Justice Samuel Alito dissented, along with Justices Clarence Thomas and Neil Gorsuch.

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

Jameel Jaffer, director of the Knight Center First Amendment Institute at Columbia University, agreed with the court majority that in this particular case, the plaintiffs had alleged a very generalized theory of coercion, but he added that the court needs to set out specific factors for evaluating when government officials go too far.

“It’s important for Democrats and liberals who are perhaps sympathetic to the Biden administration’s efforts” to prevent COVID misinformation or Russian election interference, to consider whether they would be comfortable with these same rules if the Trump administration “were to pressure social media companies to take down speech related to MeToo or Black Lives Matter or pro-Palestinian speech.”

“We need a set of rules that make sense in all of these contexts,” Jaffer said, adding, “And so far, the court hasn’t given us a lot to work with.”