By a vote of 6-3, with the Supreme Court’s new swing voters Amy Coney Barrett and Brett Kavanaugh in the majority, the Court struck down an attempt to block the federal government from working with social media companies to take down dangerous or misleading content.
The reasoning of the Court’s majority was simple: while the government may have improperly influenced social media companies in 2020 and 2021, there’s no evidence that they’re continuing to do so now. And to get an injunction, you have to show a possibility of future harm, not just bad behavior in the past.
This doesn’t mean the government is off the hook.
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The first few pages of Justice Barrett’s opinion provide a useful, comprehensive summary of the government’s interactions with social media companies during the COVID-19 pandemic and 2020 presidential election. Those actions fall far short of the fever dreams alleged in the so-called “Twitter Files,” but they are still sobering from a free speech point of view.
As Barrett relates, the White House, CDC, and FBI did apply pressure to Facebook, Twitter, and YouTube to remove posts deemed to contain misinformation about COVID, vaccines, the validity of the 2020 election, Russian disinformation tactics, and other topics. And that pressure was backed up with threats to go after the companies, either via antitrust law or new legislation that would curb their power.
Whether those actons are constitutional or not remains an open question, and the case, Murthy v. Missouri (Vivek Murthy, the surgeon general, issued a “issued a health advisory on misinformation” in 2021; Missouri is one of the states who sued in response), and others like it, will continue.
But the Court struck down a wildly broad injunction put into place by a Trump-appointed judge last year. That injunction prohibited government officials from “threatening, pressuring or coercing social media companies in any manner to remove, delete, suppress or reduce posted content of postings containing protected free speech,” and was widely understood to make nearly all contact between the government and social media companies impossible. The Fifth Circuit Court of Appeals mostly left it in place.
That injunction is now toast, because the plaintiffs offered no evidence that the government was continuing these allegedly coercive practices.
Outside of MAGA-land and its diagonalist supporters, this is surely the right decision. Particularly as we enter another election cycle, with Russian (and perhaps Chinese) disinformation campaigns already begun, social media is an amplifier not only of controversial speech or opinions, but of factually disproven disinformation specifically designed to sow discord and even violence.
Under the previous injunction, even if the government knew of active plans to commit violence being shared on social media, it would likely be barred from notifying social media companies of their existence.
The MAGA wing of the Court—Justices Clarence Thomas and Samuel Alito, joined in this case by Justice Neil Gorsuch—didn’t see it that way.
“If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years,” Justice Alito wrote in his dissent. He spent the next 3,144 words retelling the factual record of the case.
Contrary to the majority opinion, Justice Alito argued that since Facebook changed its policies due to the government’s pressure, those policies, which are still in effect, present the real possibility that the plaintiffs in the case will face a future “injury.” As Alito put it, “the effects of the changes the officials coerced persisted.”
As with other recent opinions by Justice Alito, what’s most notable about his dissent is its tone, which is truculent, trollish, and Trumpy.
He decries as “censorship” emergency efforts to thwart a massive public health emergency. He insists that the government, not Facebook, was ultimately in charge—even though Facebook remains, today, one of the leading sources of misinformation on a wide variety of subjects, including, these days, antisemitic conspiracy theories spread by the moderators of groups with, collectively, over 300,000 members.
Writes Alito, “Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster.”
I’m not sure that Mark Zuckerberg would agree with that.
To be sure, there are strong, civil libertarian arguments for being concerned about government overreach in cases like this.
On the other hand, there are strong communitarian arguments about reining in social media companies, which, after, all are for-profit mega-corporations that make money based on how many viewers they can engage. And as we should all know by now, rage-inducing, incendiary, false conspiracy theories are the most engaging posts of all.
Alito’s hyperbole notwithstanding, no one is having their speech censored. They’re just losing their access to a megaphone.
Even Alito’s purple prose doesn’t demonstrate some “Censorship Industrial Complex” involving government actors, academic institutions like the Stanford Internet Observatory, and supposed shadowy masterminds like Renee DiResta—who has now written a book about what it’s like to be targeted and harassed by the legions of trolls that irresponsible “journalists” now command.
I have seen the effects of this troll army firsthand, and they are shocking: it’s a virtual mob with very real-world impact.
Ask the Stanford undergrads who got doxxed, or the legion of women who got rape threats as a result of being targeted by some self-appointed guardian of civil liberty, or scholars hauled in front of Rep. Jim Jordan’s House Committee on the basis of innuendo, hyperbole, and conspiracy-mongering.
It is troubling that the government may have overstepped its bounds in combating COVID-19 and election disinformation. But it’s also troubling that an online mob of trolls attacks anyone who they think might be a part of the problem. And that same tone—pitchforks out, eyes blazing—appears in Justice Alito’s dissent.
Fortunately, there are sane right-wing conservatives on the Court, and one of them wrote a sane, reasonable opinion that calls attention to the serious allegations in this case, but steps back from conspiracy-mongering and judicial overreach.
Whether the government crossed a constitutional line remains an open question. But the “Censorship Industrial Complex” is bunk.
