• by Wendy Davis  @wendyndavis, June 26, 2024

The Supreme Court on Wednesday struck down an injunction that could have prevented Biden administration officials from discussing controversial subjects with personnel at social media platforms.

In a 6-3 opinion authored by Justice Amy Coney Barrett, the court found that the people who sought the injunction lacked “standing” to proceed because they hadn't shown a “substantial risk” that their First Amendment rights would be violated in the near future.

The ruling grew out of a lawsuit brought in 2022 by attorneys general in Louisiana and Missouri, and five individuals who alleged that their social media posts relating to COVID-19 policies and vaccines were suppressed due to government pressure. The attorneys general and individuals specifically claimed that federal officials violated the First Amendment by wrongly pressuring tech platforms to “censor disfavored speakers and viewpoints.”

U.S. District Court Judge Terry Doughty in Monroe, Louisiana, sided with the plaintiffs and on July 4, 2023, issued a broad injunction prohibiting a numerous federal agencies and officials from attempting to persuade social media platforms to take down posts protected by the First Amendment.

The administration appealed Doughty's order to the 5th Circuit, which narrowed the injunction, but still prohibited some officials, including members of the White House's staff, from attempting to “coerce” or “significantly” encourage platforms' decisions about content moderation.

The Biden administration then asked the Supreme Court to lift the injunction. Among other arguments, the administration disputed that it ever “coerced” platforms into changing their content moderation policies.

“Despite the platforms’ routine refusals to act in response to the government’s outreach, neither respondents nor the Fifth Circuit have identified even a single instance in which the government imposed any adverse consequences in retaliation,” the Solicitor General wrote in papers filed late last year. “Indeed, Twitter ceased enforcement of its COVID-19 misinformation policy in November 2022, yet suffered no adverse consequences from the federal government.”

Barrett said in the ruling that the plaintiffs hadn't shown they were entitled to proceed in court because they failed to establish “a substantial risk of future injury that is traceable to the government defendants and likely to be redressed by an injunction against them.”

She added that the lower court judges failed to differentiate between individual plaintiffs, platforms and government officials.

The 5th Circuit “erred by treating the defendants, plaintiffs, and platforms each as a unified whole,” Barrett wrote.

“For every defendant, there must be at least one plaintiff with standing to seek an injunction. This requires a certain threshold showing: namely, that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff ’s speech on that topic,” she added.

She also noted in the ruling that social media platforms have long moderated content

“The platforms, acting independently, had strengthened their pre-existing content moderation policies before the government defendants got involved,” she wrote, adding that Facebook revised its COVID-19 policies in February 2021 -- before White House officials began speaking to the company about the pandemic.

Justices Samuel Alito dissented, in an opinion joined by Justices Neil Gorsuch and Clarence Thomas.

“For months in 2021 and 2022, a coterie of officials at the highest levels of 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,” Alito wrote.

He added that the majority opinion “unjustifiably refuses to address this serious threat to the First Amendment.”