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

SAN ANSELMO, CALIFORNIA - OCTOBER 04: In this photo illustration, the Facebook and Instagram apps are seen on the screen of an iPhone on October 04, 2021 in San Anselmo, California. Social media applications Facebook, Instagram and WhatsApp are experiencing a global outage that started before 9 a.m. (P.S.T.) on Monday morning. (Photo Illustration by Justin Sullivan/Getty Images)

The U.S. Supreme Court on Wednesday rejected arguments by Missouri and Louisiana that the federal government violated the First Amendment in its efforts to combat false, misleading and dangerous information online.

In a 6-3 decision written by Justice Amy Coney Barrett, the court held that neither the states nor seven individuals who were co-plaintiffs in the case were able to demonstrate any harm or substantial risk that they will suffer an injury in the future.

Therefore, they do not have legal standing to bring a case against the federal government.

Plaintiffs failed to prove that social media platforms acted due to government coercion, Barrett wrote, rather than their own judgment and policies. In fact, she wrote, social media platforms “began to suppress the plaintiffs’ COVID–19 content before the defendants’ challenged communications started.”

Plaintiffs cannot “manufacture standing,” Barrett wrote, “merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”

The ruling overturns a lower court decision that concluded officials under Presidents Joe Biden and Donald Trump unlawfully coerced social media companies to remove deceptive or inaccurate content out of fears it would fuel vaccine hesitancy or upend elections.

Missouri Attorney General Andrew Bailey, who inherited the lawsuit from his predecessor, has called the federal government’s actions “the biggest violation of the First Amendment in our nation’s history.”

But those arguments were greeted with skepticism by the court in March, with justices from across the ideological spectrum punching holes in the lawsuit and raising concerns about the consequences for public safety and national security.

In his dissent, Justice Samuel Alito wrote that the government’s actions in this case were not ” ham-handed censorship” that the court has routinely rejected, but they were coercive and illegal all the same.

“It was blatantly unconstitutional,” he wrote, “and the country may come to regret the court’s failure to say so… If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this court should send.”

Louisiana Attorney General Liz Murrill released a statement on social media calling Wednesday’s ruling “unfortunate and disappointing.”

“A majority of the Supreme Court gives a free pass to the federal government to threaten tech platforms into censorship and suppression of speech that is indisputably protected by the First Amendment,” Murril said. “The majority waves off the worst government coercion scheme in history.”

In an emailed statement, Bailey made no mention of the court’s decision to dismiss the case, instead declaring that his office will continue to pursue evidence of social media censorship by the federal government.

“Missouri is not done,” Bailey said. “We are going back to the district court to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all.”

The lawsuit was filed in 2022 by Missouri and Louisiana, along with seven people who either were banned from a platform or whose posts were not prominently featured on social media sites such as Facebook, YouTube and X, then known as Twitter.

Among the co-plaintiffs is Jim Hoft, founder of the St. Louis-based right-wing conspiracy website Gateway Pundit. Hoft has built a career on promulgating false conspiracies on a wide range of topics, from the 2018 Parkland school shooting to former President Barack Obama’s birth certificate.

His company recently filed for bankruptcy as it faces defamation lawsuits in Missouri and Colorado filed by people who say they faced threats after being vilified by Gateway Pundit in false stories.

During appeals court arguments last year, the attorneys general specifically cited Hoft, claiming that he is “currently subjected to an ongoing campaign by federal officials to target the content on his website.”

Hoft claims claims that Twitter, in December 2020, censored content about the Hunter Biden laptop story at the urging of the federal government. But Barrett wrote that Twitter acted according to its own rules against posting or sharing “privately produced/distributed intimate media of someone without their express consent.”

There is no evidence, Barrett wrote, that Twitter adopted its policy in response to pressure from the federal government.

Benjamin Aguiñaga, the solicitor general for the Louisiana attorney general, argued before the court in March that the government has no right to try to persuade social media platforms to violate Americans’ constitutional rights, “and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That is just being a bully.”

Emails obtained as part of the lawsuit, Aguiñaga argued, show the government badgered platforms behind closed doors, abused them with profanity and “ominously says that the White House is considering its options… all to get the platforms to censor more speech.”

“Under this onslaught,” he said, “the platforms routinely cave.”

The federal government, represented by Brian Fletcher, principal deputy solicitor general, argued Aguiñaga’s accusations simply don’t hold water.

There is no evidence that decisions by social media companies to remove or deprioritize content can be attributed to the government. Instead, Fletcher argued, the companies made their own decisions relying on their own content moderation policies.

There was no coercion or attempted intimidation, Fletcher said, and the best proof is that social media companies “routinely said ‘no’ to the government.”

Missouri Independent is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Missouri Independent maintains editorial independence. Contact Editor Jason Hancock for questions: info@missouriindependent.com. Follow Missouri Independent on Facebook and X.

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