Supreme Court Sees Through The Nonsense, Rejects Lower Courts’ Rulings Regarding Social Media Moderation

Legal Issues

from the none-of-this-conspiracy-theory-bullshit dept

Actual free speech survives for yet another day as the Supreme Court has rejected a bunch of fantasy-land nonsense in a case in which Trumpists were absolutely positive they’d caught the government “censoring” speech on social media. But every time we looked at the actual evidence, all we saw was “lizard people” level conspiracy theory nonsense.

We’ve talked about the Murthy v. Missouri (originally Missouri v. Biden) case for quite some time now. In this case, Missouri and Louisiana, along with a few rando nonsense peddlers online, had sued the Biden administration for supposedly convincing social media companies to remove their speech. While there were some examples of social media companies doing basic content moderation and there were examples of government officials making statements about content moderation, the case did not have any actual evidence of the government coercing websites to remove or limit the reach of the speech.

And that, as the ruling notes, is kind of the whole ballgame.

As we’ve discussed at great length, both of the following can be true: it absolutely should violate the First Amendment for government officials to threaten and coerce private parties to get them to remove speech and nothing in this case showed any form of actual coercion.

What it showed was a bunch of wild ass conjecture, ridiculously wrong claims, and laughably stupid interpretations of basic everyday content moderation and information sharing. And yet a very partisan district court judge bought every single loony claim and issued the most ridiculously stringent opinion a year ago, insisting that basically every content moderation decision on social media could be traced back to government threats, and ordering nearly all communication between the government and websites to stop.

The 5th Circuit recognized that the lower court went overboard and tried to clean things up, but issued multiple rulings that just made another mess of things. It said that many of the government agencies hadn’t coerced, but some had, and left no clear rules or any way to understand when something crossed the line. In fact, the 5th Circuit ruling was so unhelpful that while their initial ruling said that the government’s Cybersecurity and Infrastructure Security Agency (CISA) had not coerced, a few weeks later they reissued the opinion changing just one paragraph to say that it had coerced. With no explanation.

So, if you were trying to understand where that line was and what coercion was, you had no chance.

When the Supreme Court heard the case earlier this year, it seemed clear that the Justices were perplexed as to how this case even existed. Justices across the political spectrum pointed out that the record appeared to be filled with nonsense and conspiracy theories and claims that made no sense at all.

And thus we get today’s ruling that rejects the lower courts and says none of the plaintiffs have anything that conveys standing to bring the case in the first place. The lower courts should have rejected the case quickly. We’ll have a more thorough analysis of the majority opinion (which was written by Justice Barrett, and signed onto by everyone except for Alito, Thomas, and Gorsuch) later from Cathy Gellis (who filed our own amicus brief in this case).

But the simple summary is this:

A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue.” Raines, 521 U. S., at 818; Department of Commerce v. New York, 588 U. S. 752, 766 (2019). She must show that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (internal quotation marks omitted). These requirements help ensure that the plaintiff has “such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction.” Summers, 555 U. S., at 493 (internal quotation marks omitted)

The plaintiffs claim standing based on the “direct censorship” of their own speech as well as their “right to listen” to others who faced social-media censorship. Brief for Respondents 19, 22. Notably, both theories depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.

The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon, 426 U. S., at 41–42. In keeping with this principle, we have “been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.” Clapper, 568 U. S., at 413. Rather than guesswork, the plaintiffs must show that the thirdparty platforms “will likely react in predictable ways” to the defendants’ conduct. Department of Commerce, 588 U. S., at 768. Second, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U. S. 488, 496 (1974); see also Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014) (“An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur” (internal quotation marks omitted)). Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.

And then:

The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.

We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.

This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.

Indeed, the opinion calls out the lies and the fact that the lower courts took them as fact:

The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.”… But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for other forms of moderation.

Over and over the majority case makes the simple point that you can’t just claim that the government was responsible for content moderation decisions without evidence:

The plaintiffs rely on allegations of past Government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms.

The majority opinion also calls out the basic nuttery and lies of the plaintiffs over and over again. For example:

Hoft claims that his content appears on a CISA document tracking posts that various entities had flagged for the platforms as misinformation. The spreadsheet shows that a private entity, the Election Integrity Partnership—not CISA—alerted Twitter to an unidentified article from the Gateway Pundit. And the spreadsheet does not reveal whether Twitter removed or otherwise suppressed that post. This evidence does not support the conclusion that Hoft’s past injuries are likely traceable to the FBI or CISA.

The end result is the case is sent back to the lower courts with a note attached saying, effectively, “hey fuckheads, look at what actually happened here.” This has been quite a term for the Supreme Court rejecting the insane theories of the 5th Circuit (may that continue…)

In short, the Court recognized this case for what it was: utter fucking nonsense, and told the lower courts “there’s no way you could come to this conclusion based on the evidence, which shows no direct connection.”

Still, because the court rejected on standing, it means that it did nothing to actually clarify the standard for determining when so-called “jawboning” crosses the line to First Amendment-violating coercion. The Supreme Court explicitly notes:

Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.

All that means is that this issue is far from over. Others are going to try to bring similar cases, and eventually the Supreme Court is going to need to more clearly define the test beyond the Bantam Books case in 1963, which is a good ruling, but lacks clarity.

Perhaps in an ideal world, the Supreme Court would have given us a clear rule for determining where the line is between persuasion and coercion. But the majority recognized, correctly, that this is not the case in which to do that. The record is just so full of nonsense, and not a single plaintiff with clear standing. The larger issue will live on, and I’m sure in a year or three we’ll have another case on this issue. But for now, a sense of sanity has returned.

I’m not even going to get into the dissent from Alito, which Thomas and Gorsuch signed onto. It’s basically buying into the conspiracy theory and the wacky lower court rulings. This isn’t unexpected, especially from Alito, who tried desperately during the oral arguments to save Louisiana’s floundering Solicitor General (and just recently a former Alito clerk) who kept getting confused during the hearing.

But, thankfully, Alito couldn’t convince Kavanaugh, Barrett, or Roberts. Kavanaugh seemed to totally get it at the oral arguments, Barrett wrote this opinion, and Roberts similarly seemed perplexed at oral arguments.

And so the Supreme Court gets the basics right but punts some of the deeper issues for a later date. This means we’ll have more cases along these lines, but at least, now, one hopes that they will be focused on actual facts, not fever-dream conspiracy theories.

Filed Under: 1st amendment, amy coney barrett, cisa, conspiracy theories, content moderation, free speech, jawboning, louisiana, missouri, murthy v. missouri, standing, supreme court, vivek murthy
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