Supreme Court says Biden admin can combat social media misinformation in free speech case

WASHINGTON ?The Supreme Court on Wednesday handed the Biden administration an election-year victory, throwing out a conservative challenge to government efforts to have social media companies remove posts it considered misinformation.

The 6-3 decision, led by Justice Amy Coney Barrett, was a response to a suit that came during a hot-button period when social media was thick with contentious posts over COVID-19, vaccines, top government scientist Anthony Fauci, and other emotional topics. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented.

Barrett, writing for the majority, said the challengers argued that unfettered speech on social media is critical to their work as scientists, pundits and activists.

“But they do not point to any specific instance of content moderation that caused them identifiable harm,” Barrett wrote. “They have therefore failed to establish an injury that is sufficiently ‘concrete and particularized.’”

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In the dissent, Alito complained that the majority "unjustifiably refuses to address this serious threat to the First Amendment."

"For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech," Alito wrote.

Alito highlighted as problematic an email sent from a Biden COVID adviser to a Facebook official in March of 2021 complaining that the platform was not being responsive to the administration’s concerns and “we have been considering our options on what to do about it.”

By dismissing the case without deciding the underlying First Amendment issue, the justices avoided saying when governments go too far in interacting with media platforms about their content.

The Republican-led states of Missouri and Louisiana and five individual users of social media had charged the White House, the surgeon general and others with violating their free speech rights by coercing Facebook, YouTube and X (formerly Twitter) to remove or downgrade posts.

The Department of Justice said government agencies weren’t improperly threatening social media companies, but instead, were encouraging them to remove harmful or false information, including about vaccines. There was no retaliation when the platforms did not comply, the DOJ said.

In July 2023, a district court in Louisiana sided against the administration, imposing sweeping restrictions on the government’s interaction with social media platforms.

The New Orleans-based 5th Circuit U.S. Court of Appeals narrowed the restraints. But the DOJ said that would still place unprecedented limits on how government officials can speak about matters of public concern, address national security threats, or relay public health information.

The restrictions were on hold while the Supreme Court reviewed the case.

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Experts had called the case, Murthy v. Missouri, a unique chance for the court to define how far governments may go to protect against online distribution of harmful content.

Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said it was disappointing the high court didn't provide more guidance on the limits the First Amendment places on the government’s pressure campaigns.

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

But the Supreme Court said the challengers failed to show enough of a connection between the Biden administration’s communications with social media companies and restrictions on their postings.

"To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices," Barrett wrote. "But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence."

Even if there was a link, Barrett wrote, the challengers didn’t show enough likelihood that they would be harmed in the future.

Platforms have continued to enforce their own policies against COVID-19 misinformation, so blocking the government from communicating with the companies is unlikely to make a difference, the majority said.

“In my opinion, the plaintiffs were right on one issue – the potential for government pressure to implicate First Amendment rights warrants careful consideration from the courts,” said Gautman Hans, who helps lead the Cornell Law School First Amendment Clinic. "But this case was obviously the wrong one for the Court to assess those free speech questions."

The high court also heard another case this year about content moderation, examining the constitutionality of laws passed by Florida and Texas to limit the ability of social media giants to regulate user content.

Both cases grew out of concern from conservatives that their views were being suppressed, including claims of 2020 election fraud, the origin of and treatments for COVID-19.

The chairman of the House Judiciary Committee, Rep. Jim Jordan, who has argued the Biden administration pressured social media companies to censor posts about Hunter Biden’s laptop and COVID-19 vaccines, said Wednesday the high court’s decision demonstrated the need for legislation to protect the freedom of expression.

“Our country benefits when ideas can be tested and debated fairly on their merits, whether online or in the halls of Congress,” said Jordan, R-Ohio.

“While we respectfully disagree with the Court's decision, our investigation has shown the need for legislative reforms, such as the Censorship Accountability Act, to better protect Americans harmed by the unconstitutional censorship-industrial complex. Our important work will continue."

This article originally appeared on USA TODAY: Supreme Court social media posts decision is a win for Biden