Left: Samuel Alito (YouTube/The Heritage Foundation); Center: Clarence Thomas (YouTube/Library of Congress); Right: Neil Gorsuch (Erin Schaff-Pool/Getty Images)
Justice Samuel Alito on Wednesday penned a blistering and lengthy dissent in a case about social media content moderation and censorship where the majority opinion declined to discuss the merits.
In the case stylized as Murthy v. Missouri, three states and five individual social media companies sued dozens of Biden administration officials and agencies alleging their First Amendment rights were violated.
The lawsuit alleged a raft of such constitutional violations over myriad meetings and reports in which the government strongly encouraged the nation’s largest social media companies — primarily Facebook, Twitter, and YouTube — to take proactive measures against posts containing COVID-19 and broader vaccination conspiracy theories as well as election-related misinformation and disinformation.
At the district court level, several agencies and officials were enjoined from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” The Fifth Circuit Court of Appeals slightly modified the injunction but largely agreed with the plaintiffs in the case and affirmed the prohibition.
“The Fifth Circuit was wrong to do so,” Justice Amy Coney Barrett writes for the 6-3 majority.
The court’s ruling largely eschews analysis or reference to the claimed First Amendment violations. Instead, Barrett sidesteps the merits of the case using Article III standing doctrine — a judicial theory created in two cases from the 1920s by conservative judges who sought to dampen the use and limits of constitutional redress via lawsuits.
“We begin — and end — with standing,” the majority opinion goes on. “At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute.”
In the present case, the nation’s high court simply found that the violations alleged by the plaintiffs (who the court uncharacteristically makes a note of referring to as the plaintiffs) against the defendants (who are similarly uncharacteristically referred to as the defendants) were far too tenuous to allow for judicial oversight.
“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,” the majority opinion reads. “This Court’s standing doctrine prevents us from ‘exercis[ing such] general legal oversight’ of the other branches of Government.”
Alito, in a dissent joined by Justices Clarence Thomas and Neil Gorsuch, complained that the majority has “cheapened” the court’s standing doctrine by “applying a new and heightened standard.”
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Notably, the dissent sidesteps the voluminous facts and parties in the case and instead focuses on the platform moderation involving the White House, Facebook, and health care activist Jill Hines.
“Hines showed that, when she sued, Facebook was censoring her COVID-related posts and groups,” the dissent summarizes. “And because the White House prompted Facebook to amend its censorship policies, Hines’s censorship was, at least in part, caused by the White House and could be redressed by an injunction against the continuation of that conduct. For these reasons, Hines met all the requirements for Article III standing.”
The dissent uses some ominous warnings to make its point about the interplay between the Biden administration and Facebook:
What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions. Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to know how they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. The picture is clear.
But, the majority explains, Facebook began content moderation related to COVID-19 “before almost all” of the White House’s outreach. This, Barrett determined, “weakens the inference” that “government-coerced enforcement” caused the moderation of Hines’ accounts, as opposed to, say, “Facebook’s independent judgment.”
In a footnote, the majority tackles Alito’s gripes head-on with a riposte: “it is the dissent that applies a new and loosened standard.”
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As for the merits, the dissent compares and contrasts the present case with an earlier First Amendment case from the present term. In the case stylized as National Rifle Association v. Vullo, the court unanimously ruled in favor of the NRA and against a New York State regulator who threatened other regulated entities for associating with the pro-gun group.
“What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive,” the dissent reads. “And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”
Alito insists the stakes are particularly high with social media and government regulators opposed to newspapers because social media giants rely on certain protections of federal law. And, the argument goes, Facebook in particular has shown its susceptibility to pressure campaigns.
“[W]e are obligated to tackle the free speech issue that the case presents,” the dissent goes on. “The Court, however, shirks that duty and thus permits 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.”
Alito ends his complaint with a parting shot at the majority.
“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech,” the dissent concludes. “Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”
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