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Legal Principle at Issue

Did the federal government’s request that private social media companies take steps to prevent the dissemination of purported misinformation transform those companies’ content-moderation decisions into state action and thus violate users’ First Amendment rights?

Action

The Supreme Court sidestepped deciding whether government pressure on social media platforms violates the First Amendment. In a 6-3 decision, the Supreme Court ruled that neither the state nor the individual plaintiffs had a legal right to bring their case. Writing for the majority, Justice Barrett concluded the plaintiffs failed to prove the censorship and resulting injuries were likely caused by federal officials, rather than the actions of the social media platforms, who were not named as defendants. Specifically, the plaintiffs failed to “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.”

Facts/Syllabus

From behind the scenes, various government officials from the Biden administration pressured, cajoled, and intimidated social media platforms into censoring speech and particular speakers that the officials didn’t like — particularly speech related to COVID-19 and the 2020 election. 

The attorneys general of Missouri and Louisiana, along with five individuals, sued the federal government. The lawsuit claimed that the government — including the White House, the Surgeon General’s Office, the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency — “coerced, threatened, and pressured social-media platforms to censor” their posts and those of their constituents, in violation of the First Amendment.

The district court sided with the plaintiffs, immediately prohibiting nearly all communication between a large swath of the federal government and social media platforms. The U.S. Court of Appeals for the Fifth Circuit held that this egregious behavior violated the First Amendment, and entered an injunction blocking those officials from continuing to do so, but limited the prohibition to the White House, the Surgeon General, the CDC, and the FBI. 

Importance of Case

This type of illegal government pressure is known as jawboning. While this case may involve Biden officials, Republican government actors are just as guilty of it, including former President Trump and the two government plaintiffs in this case. FIREfiled a friend-of-the-court brief asking the Court to affirm the Fifth Circuit and establish that backroom government pressure on private parties to censor violates the First Amendment.