Supreme Court won't stop Biden leaning on social media giants to tackle disinfo

White House can get back to asking Facebook and co to kindly bin off what the Feds say is misinformation

The US Supreme Court has reversed a prior decision barring federal agencies from coordinating with social media platforms to fight misinformation, on the grounds the plaintiffs in the case lacked standing to argue it to begin with.

With the matter settled by a 6-3 decision [PDF] issued on Wednesday, the federal government is free to return to reaching out to social media platforms to get what the Feds say is significant false information flagged or removed. 

Justice Amy Coney Barrett (lead author of the decision), Chief Justice John Roberts, and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson voted to reverse. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented.

For those who may not recall, the fight was between the Biden administration and a group of five individuals and the states of Missouri and Louisiana, and it began as a protest against government policing of what the Feds said was COVID-19 misinformation during the 2020 pandemic. 

The suit later evolved to include alleged unlawful suppression of online posts related to controversially unsubstantiated claims of mail-in ballot fraud and conspiracies surrounding President Biden's son, who was incidentally this month convicted on charges of lying on gun purchase paperwork. 

The social media policing case was initially decided last year in the plaintiffs' favor, in a Louisiana federal court, before being appealed by the Feds to the Fifth Circuit, which upheld the lower court ruling last September. The Fifth Circuit expanded the order in October to add Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA) to its list of agencies banned from urging social media sites to prevent the spread of disinfo. 

The White House, the US Surgeon General, Centers for Disease Control and Prevention, and the FBI were, along with CISA, all barred from working with social media platforms to curb the sharing of what Uncle Sam considered dangerous pandemic and election-related twaddle under the order.

Experts have long believed the matter was likely to end up before the Supremes, and it did when US Surgeon General Vivek Murthy filed a request for a stay in September with the case ending up on the SCOTUS docket in October. 

The six-justice majority wasn't convinced by the plaintiffs' claims, deciding that neither the individuals nor states who filed the original case had "established … standing to seek an injunction against any defendant," the justices said. 

"To obtain forward-looking relief, the plaintiffs must establish a substantial risk of future injury that is traceable to the government defendants and likely to be redressed by an injunction against them," the SCOTUS majority decision reads. 

But even the defendant with the most substantial showing of past harm "has not shown enough to demonstrate likely future harm," the justices said, noting that future moderation of posts at the request of the government is "no more than conjecture." 

In addition, the majority justices didn't seem convinced the government's prodding had even made that much difference in how the social media platforms responded. 

"Available evidence indicates that the platforms have continued to enforce their policies against COVID–19 misinformation even as the federal government has wound down its own pandemic response measures," the supremes argued.

"Enjoining the government defendants, therefore, is unlikely to affect the platforms' content-moderation decisions."

The Biden administration signaled it's ready to begin making use of its restored rights to coordinate with social media platforms to fight what it sees is misinformation, saying the SCOTUS decision was "the right one."

"The decision today ensures this work can continue as the country faces ongoing threats online," White House press secretary Karine Jean-Pierre said in a statement.

"Going forward, we will not back down from our consistent view that, while social media companies make independent decisions about the information they present, those companies have a critical responsibility to take into account the effects their platforms are having on the American people and the security of this nation."

SCOTUS decision doesn't mean this fight is over

Conservative legal group the New Civil Liberties Alliance, which has filed briefs in the case previously, told The Register it was disappointed in the outcome of the case, calling it an erasure of first-amendment freedoms in the digital age and a "wayward decision" that gives the federal government carte blanche to "coopt social media platforms to censor the American people." 

"The government can press third parties to silence you, but the Supreme Court will not find you have standing to complain about it absent them referring to you by name apparently," said NCLA senior litigation counsel John Vecchione. "This is a bad day for the First Amendment."

The government can press third parties to silence you, but the Supreme Court will not find you have standing to complain about it

Former FTC chief technologist Neil Chilson also expressed concern over the decision, telling us that the government shouldn't be in the business of coercing or pressuring private companies to regulate people's speech, no matter how much the administration disagrees with it.

"Educating the public is an important function of government, but government suppression of dissenting viewpoints is unconstitutional and un-American," Chilson said.

That said, Chilson also pointed out an important aspect of the SCOTUS decision: The book isn't closed on this case, and the justices remanded it back to the Fifth Circuit for more proceedings.

The Fifth Circuit can't undo SCOTUS's decision, Chilson told us, but that doesn't mean the fight is finished.

"This is likely not over," Chilson said, though it very well may be. "The Fifth circuit could reconsider standing using the Supreme Court's stricter interpretation, but it seems more likely to dismiss the case for lack of standing."

In other words, the final curtain has yet to fall on this case, though the stagehands have cord in hand and will probably drop it soon. ®

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