Supreme Court rules that government can ask social media platforms to remove misinformation

Amid a frantic end to their term, the U.S. Supreme Court rejected Louisiana and Missouri’s request to bar the federal government from asking social media platforms to remove false information.

Justices ruled 6-3 in Murthy v. Missouri that the states and the five individual social media users named in the case did not have the standing to sue. The plaintiffs alleged that the federal government, in violation of the First Amendment, pressured Facebook to censor their speech by deleting posts complaining about mask and vaccine requirements during the COVID-19 pandemic.

The case represents a victory for the Biden administration. Surgeon General Vivek Murthy had issued a health advisory in July 2021 encouraging social media platforms to prevent misinformation about the virus “from taking hold.” 

The ruling comes as a relief ahead of November’s elections as well. Federal agencies, states and localities have been ramping up their efforts to combat the spread of misinformation. Observers worried that an adverse ruling could have chilled “platform content moderation … preserving the ability to use disinformation as a political strategy,” said Lisa Macpherson, policy director at the broadband advocacy organization Public Knowledge, in a statement.

The decision overturns the Fifth Circuit Court of Appeals, which affirmed an earlier ruling by District Judge Terry Doughty last July that the federal government had “apparently engaged in a massive effort to suppress disfavored conservative speech.”

Writing the majority opinion, Justice Amy Coney Barrett criticized the Fifth Circuit’s “sweeping preliminary injunction” and said it was “wrong” to uphold Doughty’s ruling.

“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek,” Barrett wrote. “Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.”

Barrett was joined in the majority by Chief Justice John Roberts and justices Ketanji Brown Jackson, Brett Kavanaugh, Elena Kagan and Sonia Sotomayor. Barrett wrote that the issues in the case “begin—and end—with standing,” and said the states do not seek to prevent social media platforms from restricting posts or accounts, but “seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.”

That forward-looking theory, that those that claim they have been restricted on social media in the past and so will continue to be, did not fly with most justices.

“Here, a note of caution: If the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game,” Barrett wrote. “But because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value.”

Barrett also rejected what she called the “overly broad assertion” that the federal government has engaged in a “years-long pressure campaign” to censor and suppress certain viewpoints on social media, noting that platforms “had strengthened their pre-existing content moderation policies before the Government defendants got involved,” and used their own judgment to do so.

The Fifth Circuit came in for heavy criticism in Barrett’s written opinion, as she criticized the judges for “attributing every platform decision at least in part to the defendants,” and so said they “glossed over complexities in the evidence.” She also dinged the Fifth Circuit for relying on the District Court’s factual findings, “many of which unfortunately appear to be clearly erroneous,” especially when it found that social media platforms had what they described as an “efficient report-and-censor relationship.”

Finally, Barrett said plaintiffs’ claims that a “right to listen” to any content on social media is protected under the First Amendment is “startlingly broad, as it would grant all social media users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech.” She said the states would have had to prove specific injuries they received if they were unable to hear unfettered speech on social media.

Three justices—Samuel Alito, Neil Gorsuch and Clarence Thomas—dissented. In his written minority opinion, Alito called the case “one of the most important free speech cases to reach this Court in years.” He said a “coterie of officials” in the federal government “continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech.”

“Not surprisingly, Facebook repeatedly yielded,” Alito continued. He accused government officials of “coercive” censorship that was “blatantly unconstitutional.” Alito said social media platforms are an important source of news, but that they are “far more vulnerable” to government pressure and censorship than traditional news organizations.

“For these and other reasons, internet platforms have a powerful incentive to please important federal officials, and the record in this case shows that high-ranking officials skillfully exploited Facebook’s vulnerability,” Alito wrote.

The New Civil Liberties Alliance, a conservative legal group that was involved in the case, echoed Alito’s viewpoint, saying the decision opened the door to a “censorship industrial complex” that will “have grave consequences for Americans’ freedom for years to come.”

“This decision is a travesty for the First Amendment, for Americans’ rights to free speech, and for the pursuit of scientific and other knowledge,” Jenin Younes, litigation counsel for the alliance, said in a statement. “America can no longer claim to safeguard citizens’ free speech rights.”

Others praised the court for finding that content moderation decisions are not directly tied to government pressure campaigns.

“What we see in this decision is that the Court actually understands how content moderation works,” Jess Miers, senior legal advocacy counsel at the tech advocacy group Chamber of Progress, said in a statement. “Platforms have an important reason to seek information from actors like the CDC or national security leaders, but at the end of the day, their content moderation decisions and platform policies are their own.”