On Wednesday, the Supreme Court issued its decision in Murthy v. Missouri, a case spurred by conservative state attorneys general about whether the Biden administration illegally coerced social media companies to remove speech it didn’t like. In a 6-3 decision, the court reversed the decision by the Fifth Circuit Court of Appeals, which had found unconstitutional coercion in the government’s conduct. The Supreme Court held that the plaintiffs did not adequately establish standing — that is, their right to sue in the first place —and has sent the case back to the lower courts, where a new decision will be issued that is consistent with the SCOTUS opinion.
At its core, the case is about whether the Biden administration crossed the line from legal persuasion to illegal coercion in its communications with tech companies about things like voting or health misinformation during the pandemic. During oral arguments this year, several justices seemed uneasy with the idea of placing sweeping restrictions on the government from interacting with social media platforms. The decision clears the way for the Biden administration to continue communications with social media companies to flag potentially dangerous content, at a pivotal point before the election when platforms are on extra high alert for misinformation.
“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” Justice Amy Coney Barrett wrote in the opinion. “This Court’s standing doctrine prevents us from ‘exercis[ing such] general legal oversight’ of the other branches of Government.”
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The Supreme Court said that the Fifth Circuit “glossed over complexities in the evidence” by “attributing every platform decision at least in part to the defendants,” meaning the federal government. While the majority opinion acknowledges that the government actors “played a role” at times in some of the social media platform’s content moderation decisions, it says that “the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.”
On top of that, the timing of platforms’ content moderation decisions that were in question cast doubts on the causal relationship between government pressure and the platforms’ choices, according to the court. “Complicating the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than its own judgment, is the fact that the platforms began to suppress the plaintiffs’ COVID–19 content before the defendants’ challenged communications started,” according to the majority.
The ruling also states the states largely failed to link platforms’ restrictions to the federal government’s communications with the companies. For example, Facebook’s Covid-related restrictions on a “healthcare activist” predated some of the communications the federal government had with the company, according to the court. “Though she makes the best showing of all the plaintiffs, most of the lines she draws are tenuous,” the majority wrote.
Justice Barrett wrote the majority opinion, and was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson.Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.
In his dissent, Alito wrote that “valuable speech was ... suppressed.” A footnote that immediately followed cited the lab leak hypothesis, a minority scientific theory that covid originated from a laboratory in China.
Alito accuses the majority of allowing “the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.” The message, he adds, is that “If a coercive campaign is carried out with enough sophistication, it may get by.”
Alito’s dissenting opinion mostly focuses on how Facebook moderated covid misinformation, with examples including the safety and efficacy of vaccines, as well as the lab leak hypothesis. It also cites a recent report published by the House Judiciary Committee, which is currently chaired by Rep. Jim Jordan (R-OH). Jordan attended oral arguments in Murthy.
The House Judiciary Committee report, which contained internal communications among high-ranking tech executives, concluded that the “Biden White House coerced companies to suppress free speech.” In a hearing right before the report was published, Rep. Stacey Plaskett, a Democrat who represents the US Virgin Islands, accused Republicans of making a “last ditch effort to influence the Supreme Court opinion in the case ofMurthy v. Missouri.”
