Supreme Court reverses 5th Circuit, again. Questions of online free speech remain.

In a case with profound free speech concerns, six Supreme Court justices ruled Wednesday that plaintiffs could show no injury and therefore had no right to sue.

The case, which arose after the pandemic and 2020 presidential election erupted in mass conspiracy theories online, raised several thorny constitutional issues. How do you crack down on misinformation without curtailing free speech? If the government asks a company to do something, is that inherently coercive? Doesn’t the government have an interest in communicating with social media companies – private businesses that now manage some of the biggest public forums – during a national crisis?

In sending the case, Murthy v. Missouri, back to a federal appeals court, the justices have done little to help clarify those concerns ahead of a contentious election season.

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“Based on the court’s account of the facts, it seems right that it reversed” the lower court, says Jennifer Jones, a staff attorney at the Knight First Amendment Institute.

But “it’s really crucial that the Supreme Court clarify what the line is between permissible attempts to persuade and impermissible attempts to coerce,” she adds. “It’s unfortunate that we didn’t get that out of this decision.”

Nearing what is likely to be an eventful end to its term, the U.S. Supreme Court rejected a claim that the federal government had coerced social media companies into suppressing posts from certain individuals related to public health and election issues.

The narrow, procedural ruling held that two states and five individual plaintiffs don’t have standing, or the right to sue. The plaintiffs had claimed the federal government pressured social media companies into censoring users who voiced criticisms of the 2020 presidential election and the government response to the COVID-19 pandemic.

The 6-3 decision – which split the court’s conservative justices – came in a case with profound free speech concerns, striking at the country’s yearslong efforts to police misinformation online without trampling First Amendment rights. In sending the case back to a federal appeals court, the justices have done little to help clarify those concerns ahead of what is expected to be a contentious 2024 election season.

“Based on the court’s account of the facts, it seems right that it reversed” the lower court, says Jennifer Jones, a staff attorney at the Knight First Amendment Institute.

But “it’s really crucial that the Supreme Court clarify what the line is between permissible attempts to persuade and impermissible attempts to coerce,” she adds. “It’s unfortunate that we didn’t get that out of this decision.”

Is misinformation protected under the First Amendment?

In 2021, the federal government became concerned about the spread of misinformation on social media amid the pandemic and unsubstantiated claims that the 2020 presidential election had been stolen. Officials in several federal agencies talked with senior figures at Facebook and Twitter (now called X) about their content moderation processes generally, and specifically about posts from certain users.

Those efforts raised concerns, and lawsuits alleging government censorship. After five individuals had social media posts critical of the pandemic response and the 2020 election removed, they sued the Biden administration. The plaintiffs alleged the federal government had pressured the social media companies into censoring their First Amendment-protected speech. They argued that, when it came to the pandemic, some things the government claimed were misinformation turned out to be true, or at least arguably so. The states of Missouri and Louisiana also joined the lawsuit, which reached the Supreme Court as Murthy v. Missouri.

The case raised several thorny constitutional issues. How do you crack down on misinformation without curtailing free speech? If the government asks a company to do something, is that inherently coercive? Doesn’t the government have an interest in communicating with social media companies – private businesses that now manage some of the biggest public forums of America’s political and social debate – during a national crisis?

But the Supreme Court never reached those constitutional issues. Instead, it determined the plaintiffs didn’t draw a strong enough connection between the government’s communications with the social media companies and the actions those companies took against the plaintiffs’ posts.

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,” wrote Justice Amy Coney Barrett in the majority opinion.

“On this record, that is a tall order.”

The platforms, she added, “had independent incentives to moderate content and often exercised their own judgment.”

Indeed, the ruling represents the latest of several repudiations of decisions by the U.S. Court of Appeals for the 5th Circuit. Justice Barrett wrote that the appeals court “glossed over complexities in the evidence,” relied on “clearly erroneous” factual findings by the District Court, and “erred by treating the defendants, plaintiffs, and platforms each as a unified whole.”

Rather than allege a broad conspiracy, plaintiffs needed to show that they were injured with regard to each platform and each defendant.

“The decision really shows that claims alleging sort of vast, nebulous conspiracy theories won’t be allowed to move forward,” says Ms. Jones. “Hopefully, moving forward, these investigations and discussions will focus where they should be focused, which is on concrete instances of government pressure that are intended to suppress content, instead of these sort of broader allegations of government coercion,” she adds.

Greg Magarian, a professor at the Washington University School of Law in St. Louis, notes that the ruling means it will be difficult “to find any good plaintiff” to bring this kind of case. But the courts have only just begun to wrestle with online speech issues.

“This is by far the most intensely the court has engaged with any kind of online speech since” Reno v. American Civil Liberties Union in the 1990s, says Professor Magarian. While the court has heard cases regarding online speech since then, he adds, he believes this term’s decisions are going to be more consequential.

“When you have any kind of social development that is really rapid, the law is typically going to have a hard time keeping up with that. And this is a classic example,” he adds.

When will we get clarity on social media and free speech?

Justice Samuel Alito, along with Justices Clarence Thomas and Neil Gorsuch, took the opposite view. The plaintiffs do have standing to sue, Justice Alito wrote in a dissent. He pointed to several cases in which the court had allowed people with similarly tenuous standing claims to sue.

This debate is not new – the Supreme Court’s standing doctrine is notoriously pliable. But in describing Wednesday’s case as “one of the most important free speech cases to reach this court in years,” Justice Alito warned that the decision could have dire consequences.

In particular, he referenced a May high-court ruling called National Rifle Association of America v. Vullo. In that case, the justices ruled unanimously that a New York official had, for political reasons, coerced state entities into ending business relationships with the NRA.

“What the officials did in [Murthy] was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive,” wrote Justice Alito.

With its ruling, the court has sent the message that “if a coercive campaign is carried out with enough sophistication, it may get by,” he added. “That is not a message this Court should send.”

As America enters what is expected to be a contentious election season, such warnings carry a bit more heft.

The Supreme Court has one more social media case pending this term. That one concerns state laws that would limit social media companies’ ability to moderate content, and that decision could help clarify free speech protections online. But issues around the regulation of online speech aren’t going away, says David Greene, civil liberties director at the Electronic Frontier Foundation.

The weakness of Wednesday’s case, he believes, was the claim that there was a grand conspiracy to censor conservative voices. He says there are serious free speech problems with content moderation that are certainly not limited to conservative voices. 

“I don’t know that this [ruling] turns down the volume on some of the free speech debates going on in the U.S. now,” he adds. “The politics of them have been wrongly mischaracterized.”