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“The Supreme Court on Wednesday threw out a lawsuit seeking to limit the government’s ability to communicate with social media companies about their content moderation policies. By a vote of 6-3, the court ruled [that] the plaintiffs did not have a legal right, known as standing, to bring their lawsuit…
“Writing for the majority, Justice Amy Coney Barrett cited the lack of any ‘concrete link’ between the restrictions that the plaintiffs complained of and the conduct of government officials – and in any event, she concluded, a court order blocking communication between government officials and social media companies likely would not have any effect on decision-making by those platforms, which can continue to enforce their policies…
“The lawsuit centers on ‘jawboning,’ a term used to describe informal efforts by government officials to persuade someone outside the government to take action. In this case, the plaintiffs – two states with Republican attorneys general and several individuals whose social media posts were removed or downgraded – challenged the Biden administration’s efforts in 2021 to restrict misinformation about the COVID-19 vaccine. They argued that the administration’s actions had violated social media users’ rights to free speech.” SCOTUSblog
The left generally supports the ruling, arguing that the government did not coerce social media companies.
“The platforms were already removing anti-vax content long before officials urged them to. There is no evidence in the vast record that demonstrates active ‘coercion,’ no smoking gun that shows some government employee ordering a platform to take down specific content or else…
“At best, the record shows the White House and several federal agencies engaging in persuasion, explaining to platforms why, in their views, they ought to moderate some content more strictly. As Justice Brett Kavanaugh explained at oral arguments, though, persuasion is not censorship: Government officials have their own authority to communicate with private companies, and do not trip some invisible First Amendment wire when they make their opinions known.”
Mark Joseph Stern, Slate
“As a dean of a public university law school, do I violate my students’ free speech rights when I encourage them to speak respectfully to one another, to demonstrate civility and to refrain from hateful expression? There are countless instances in which government officials speak out — does that chill freedom of expression among those who disagree with what an official says? In two Supreme Court cases this term… the justices rightly reaffirmed that speech by government officials violates the 1st Amendment only if it includes an explicit threat of sanctions…
“The premise of the majority decision is that social media companies are private entities and can decide for themselves what speech to carry and what to remove. The government encouraging them to remove false speech only violates the 1st Amendment if it can be proved that the government caused, and will cause in the future, speech to be blocked… The court stressed that the ‘platforms had independent incentives to moderate content and often exercised their own judgment.’”
Erwin Chemerinsky, Los Angeles Times
Some argue, “In 1954, Harvard cashiered a professor at the medical school after congressional Red-baiters called for her dismissal after she refused to testify at a hearing about Communism. Later, the university dumped a psychology professor who did the same. Even if the McCarthyites complained only about the first professor, we surely wouldn’t say that there was no connection between the two cases…
“The reason governments punish speech is rarely to ‘get’ one particular speaker — it’s to make sure that all the other potential speakers get the message, and learn what not to say. Similarly, the reason governments pressure social media companies is rarely to ‘get’ a particular user — it’s to make sure that all the other users get the message… The government should be forced to keep its fingers far away from the levers of speech regulation for the same reason that a bank shouldn’t hire a convicted embezzler: temptation, temptation, temptation.”
Stephen L. Carter, Bloomberg
The right is critical of the ruling, arguing that it will make future censorship more likely.
The right is critical of the ruling, arguing that it will make future censorship more likely.
“The White House’s barrage of demands came paired with intimations and implied threats that the administration might pursue increased antitrust enforcement against the platforms or might push to revise laws to remove immunity from civil liability that the platforms currently enjoy for their content-moderation practices should they decline to comply with the government’s desires.”
Jack Fitzhenry and Hans von Spakovsky, Daily Signal
“The pressures on the social-media platforms were so multifaceted and diffuse that the majority wasn’t persuaded that the plaintiffs could identify who in particular — the Surgeon General, the White House press secretary, the FBI, even the president himself (who bellowed in 2021 that the social-media companies were ‘killing people’ by not censoring enough information) — pushed the pressure so far that it caused their particular social-media accounts to be squelched…
“Today’s decision is, at a minimum, deeply disappointing for what it places outside any judicial remedy. In an age when speech is increasingly digital, when executive power only grows more vast, diffuse, and lawless, when cultural polarization and declining respect for civil discourse generate ever-greater demands to use the levers of federal executive power to silence opponents, a lack of judicial remedies may be a great cause for regret.”
Dan McLaughlin, National Review
“[Justice Alito writes that] ‘Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster.’… It’s a shame the majority ducked the free-speech merits in this case because Justice Alito’s warning about stealth censorship seems right given the Covid experience and the Administration’s desire to police ‘disinformation.’ Liberals may rue this in the future as much as conservatives do in this case.”
Editorial Board, Wall Street Journal
“What matters now is what Americans are going to do to prevent a repeat of the disgraceful executive-branch conduct that is outlined at length in the dissent…
“‘If a coercive campaign is carried out with enough sophistication,’ Alito predicted darkly, ‘it may get by. That is not a message this Court should send.’ I agree with Alito’s assessment of the problem. I would add, however, that if Americans do not want that message to be sent, then they ought to demand that Congress step in and interdict it…
“Were I in Congress… I would require that the executive branch establish a single office that it must use when communicating with social-media companies about their content, and, having thus narrowed the legitimate loci of action, I’d require both the executive branch and the social-media companies to disclose all communications between them and that office.”
Charles C. W. Cooke, National Review
A libertarian's take
“There is a broader problem here that goes far beyond the details of this specific case. Unlike direct government censorship, censorship through indirect coercion of media usually involves veiled threats and sometimes subtle communications whose meaning depends on context. There often will not be ‘smoking gun’ evidence directly demonstrating a clear and simple link between the government's pressure campaign and the actions of media firms restricting speech…
“The standing requirements adopted by the Court could just as easily be used by right-wing officials to target left-wing speech, as vice versa. Donald Trump has promised to use the power of the federal government to punish his critics, if he returns to power. Even if you are confident that Biden would not abuse the standing restrictions adopted by the Court in this case to shield future censorship efforts, I bet you don't have similar faith in Trump.”
Ilya Somin, Volokh Conspiracy
