Supreme Court Backs White House on Social Media Post Removal

(Bloomberg) -- The US Supreme Court cleared the Biden administration to communicate freely with social media companies in an election-year ruling that bolsters the government’s ability to seek removal of what officials see as misinformation.

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The justices, voting 6-3, tossed out court-imposed restrictions on contacts by the White House and several federal agencies. A federal appeals court said the curbs were warranted because government officials had unconstitutionally coerced platforms into taking down posts about the pandemic and the 2020 election.

Writing for the high court, Justice Amy Coney Barrett said the justices didn’t need to resolve the First Amendment issues in the case because the challengers – two states and five of their residents – lacked legal standing to press their lawsuit against the federal government.

The challengers failed to show “any concrete link between their injuries and the defendants,” Barrett wrote. “This court’s standing doctrine prevents us from exercising such general legal oversight of the other branches of government.”

Although the ruling gives the administration a freer hand to talk to social media companies, it’s not clear how active the government will be as the November election approaches. Even after the Supreme Court temporarily lifted the restrictions in October, the administration remained cautious and wasn’t in touch with platforms about election-related matters, an official who works on those issues said in March.

Department of Homeland Security Secretary Alejandro Mayorkas earlier this month said there has been less communication between the tech companies and government officials in light of the Supreme Court case and broader pushback from Republican lawmakers.

“Politicization of the threat of disinformation is detrimental to the security mission,” Mayorkas told a group of Bloomberg News reporters and editors.

‘Threats Online’

White House Press Secretary Karine Jean-Pierre said the ruling will allow the administration to urge social media companies to protect the safety and security of Americans.

“This Administration engages with social media and other technology companies on critical topics, including terrorism threats, foreign malign influence campaigns, online harassment of women and children, and mental health of children and adolescents,” Jean-Pierre said in a statement. “The Supreme Court’s decision today ensures this work can continue as the country faces ongoing threats online.”

Three conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — dissented. Writing for the group, Alito said the ruling “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 wrote the behavior of social media companies was “blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.”

Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson joined the majority.

‘Content Moderation’

Major tech companies hailed the ruling.

“It’s critical that the Supreme Court distinguish between the independent content moderation decisions made by social media companies and communications from government actors,” said Jess Miers, senior legal advocacy counselor with Chamber of Progress, which counts Meta Platforms Inc. and Alphabet Inc. among its funders. “At the end of the day, their content moderation decisions and platform policies are their own.”

Some election experts said the court’s decision will enable the government and platforms to work more closely together to prevent foreign influence campaigns during the election season. Nicole Gill, executive director of tech watchdog group Accountable Tech, said cooperation is “essential to preserving public safety and a healthy democracy.”

The underlying issue in the case was how much power the government has to tackle falsehoods without running afoul of the Constitution’s free speech clause. Missouri, Louisiana and five of their residents sued over what they called a “sprawling federal Censorship Enterprise” involving dozens of officials and at least 11 federal agencies.

A federal trial judge agreed and issued a sweeping injunction restricting contacts by hundreds of thousands of government workers. The 5th US Circuit Court of Appeals narrowed the injunction but left it intact against the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency

The Supreme Court put the 5th Circuit ruling on hold in October over the dissents of Alito, Thomas and Gorsuch.

It’s the fourth time this year that the Supreme Court has reversed a high-profile ruling from the conservative 5th Circuit, whose far-reaching decisions have proved impossible for the nation’s highest court to ignore.

The high court previously overturned a 5th Circuit ruling that would have barred mail-order prescriptions for mifepristone, the drug used in more than half of US abortions. As with the social media case, the Supreme Court said anti-abortion doctors and organizations lacked standing to sue.

The justices also reversed a 5th Circuit decision that would have allowed firearm possession by people under domestic-violence restraining orders, as well as a 5th Circuit ruling that threatened the Consumer Financial Protection Bureau’s funding system.

The Supreme Court will rule in the coming days on two other significant 5th Circuit decisions, one that would let Texas regulate social media content and another that would limit the ability of the Securities and Exchange Commission to press cases before in-house judges.

The social media case is Murthy v. Missouri, 23-411.

--With assistance from Erik Larson and Emily Birnbaum.

(Updates with comment from tech industry, White House.)

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