The Supreme Court handed the Biden administration a win yesterday, ruling that conservative activists and two red states that claimed federal government officials had “censored” their social media posts lacked standing to sue.
The plaintiffs, Justice Amy Coney Barrett wrote, could not show that they likely faced future harm based on the past conduct of Biden administration officials and social media platforms like Facebook and Twitter (now X).
But there was more to the ruling than that. Barrett went out of her way to emphasize that the legal attack on the Biden administration was based on a conspiracy theory about collusion between liberal political operatives and sympathetic platform employees, not on facts that established that government representatives had coerced the platforms to remove or down-rank conservative content or accounts.
The conspiracy theory that Barrett punctured supports a much broader and equally false right-wing contention that liberals in Washington have collaborated with Silicon Valley and ivory tower academics to silence conservatives.
Barrett said the right-wing contention is simply untrue. In this case, known as Murthy v. Missouri, “the platforms had independent incentives to moderate content and often exercised their own judgment,” she wrote.
Moreover, she added, the U.S. Court of Appeals for the Fifth Circuit, “by attributing every platform decision at least in part to the defendants, glossed over the complexities in the evidence.”
Barrett, in other words, demanded that we look at the actual facts — in all of their complexity — rather than buy into the falsehoods pushed by former President Donald Trump, Rep. Jim Jordan (R-Ohio) and others on the right who believe a vast left-wing conspiracy has marginalized Republicans.
While this conclusion is not technically part of the majority’s holding on the standing issue, it is a significant and welcome nod to the need for rationality and fact-based argument in American law and politics.
Chief Justice John Roberts and fellow Republican appointee Justice Brett Kavanaugh joined the majority, as did Democratic appointees Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Samuel Alito filed a dissent, which was joined by Justices Clarence Thomas and Neil Gorsuch, all Republican appointees.
The case originated with the states of Louisiana and Missouri and five individuals — three doctors who objected to COVID-19 mask and vaccination requirements, an online conservative pundit and a right-leaning healthcare activist.
It argued that Biden administration officials, including people working for Surgeon General Vivek Murthy, violated their First Amendment rights by “jawboning” major platforms into removing or marginalizing their content. The conservative plaintiffs won in the lower courts, and the Biden administration appealed to the Supreme Court.
Barrett based her ruling on the plaintiffs’ failure to establish a clear link between administration communications, platforms’ content moderation decisions and harm to the plaintiffs. She said that the Fifth Circuit had based its decision to enjoin administration officials from future jawboning on factual findings by a Trump-appointed federal trial judge in Louisiana, Terry Doughty.
Many of those factual findings “unfortunately appear to be wrong,” she wrote in an unusually blunt assessment.
For example, Judge Doughty sweepingly asserted that the Biden administration and Twitter had established “an efficient report-and-censor relationship” and that the platform enforced a “streamlined process for censorship requests.” But when she went looking in the legal record of the case, Barrett said she simply did not find evidence to support these sensational-sounding assertions.
In his dissenting opinion, Alito, by contrast, accepted the trial judge’s factual findings at face value. “For months,” Alito wrote, “high-ranking government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech.”
The upshot is that the Supreme Court case did not clarify the line between legitimate government persuasion and unlawful official coercion.
Government officials certainly cannot bully or threaten social media platforms to make specified content decisions. But Barrett made clear that to translate discontent with such content decisions into a viable legal case, unhappy social media users will have to ground their objections in concrete evidence, not sensational, unsubstantiated assertions.
Paul M. Barrett is the deputy director and senior research scholar at the NYU Stern Center for Business and Human Rights and an adjunct professor at the NYU School of Law.