The Supreme Court on Wednesday found that the state of Missouri did not have standing to challenge the Biden administration’s alleged coercion and efforts to encourage censorship on social media.
The 6-3 majority opinion by Justice Amy Coney Barrett found that the plaintiffs, which included individuals and the state of Missouri, lacked standing to bring the case.
The case first surfaced in 2022 as Missouri v. Biden. The Republican attorneys general of Missouri and Louisiana and five other plaintiffs sued the Biden administration over its involvement in social media companies’ censorship practices.
The plaintiffs alleged that the federal government had violated the First Amendment by pressuring social media companies to censor controversial posts, such as those about the COVID-19 lab leak theory or the vaccine, elections, and Hunter Biden’s computer data. They also alleged that officials instilled fear in social media companies to comply with the government’s content preferences.
In seeking to prove their claims, the petitioners pointed to Andy Slavitt, a White House COVID-19 adviser who, at one point, showed frustration with Facebook in an email to the company in March 2021.
“Internally we have been considering our options on what to do about it,” Slavitt wrote to the company in reference to online content that the official had flagged to the social media company.
But Barrett’s majority flagged a major error by the parties who brought the case, saying that “the plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts.”
On July 4, 2023, a federal judge in Louisiana ruled against the Biden administration, saying in a lengthy memorandum ruling that the case “depicts an almost dystopian scenario” in which the government “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
The memorandum noted how officials at agencies such as the Centers for Disease Control and Prevention, the Department of Homeland Security, or the FBI routinely met with or checked in with social media platforms, including Facebook, YouTube, and X, to discuss how they were managing what the government perceived to be misinformation.
The district court judge issued a preliminary injunction that prohibited some government agencies from communicating with social media companies about content moderation, and the 5th Circuit Court of Appeals partially upheld the ruling. Justices later agreed to take up the case last October.
Barrett’s majority decision also dinged the 5th Circuit, one of the most conservative appellate courts in the nation, for “attributing every platform decision at least in part to the defendants, gloss[ing] over complexities in the evidence.”
“The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole. Because ‘standing is not dispensed in gross,'” Barrett said.
Conservative legal groups that hoped the justices would uphold the district court’s finding expressed outrage with the decision’s potential to embolden the “censorship regime” of the Biden administration.
“This decision is a travesty for the First Amendment, for Americans’ rights to free speech, and for the pursuit of scientific and other knowledge,” said New Civil Liberties Alliance lawyer Jenin Younes, who worked on the case. “America can no longer claim to safeguard citizens’ free speech rights.”
Dr. Jayanta Bhattacharya, an NCLA client and professor at the Stanford University School of Medicine in the Department of Health Policy, contended that the Biden administration exercised its use of regulatory power to “suppress valid criticism of its COVID response.”
“Free speech is essential to science, to public health, and to good health,” Bhattacharya said, adding that Congress should act to “restore speech rights as a central plank of the American civic religion.”
But Justice Samuel Alito penned a dissent, joined by Justices Clarence Thomas and Neil Gorsuch, that completely rejected the majority’s findings.
Notably, Alito wrote that Facebook’s response to the officials’ “persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations.”
“Time and time again, Facebook responded to an angry White House with a promise to do better in the future,” Alito added. “In March, Facebook attempted to assuage the White House by acknowledging ‘[w]e obviously have work to do to gain your trust.'”
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The decision comes ahead of the November presidential election at a time when emerging tools such as AI are becoming more readily available to the public, which experts have warned could amplify the potential for disinformation online.
Murthy was one of several cases this term that stood at the crossroads between social media and the First Amendment’s free speech protections.
