U.S. Supreme Court ruling called ‘wicked left hook’ to First Amendment

Analysis by WorldTribune Staff, June 26, 2024 Contract With Our Readers

In a 6-3 decision, the Supreme Court on Wednesday rejected a lawsuit which alleged Biden administration officials unlawfully pressured social-media platforms to remove content flagged as disinformation.

The decision, written by Justice Amy Coney Barrett, said the plaintiffs, two states and five private parties, failed to show they were directly harmed — or faced the risk of future harm — by the alleged actions of Team Biden.

In writing the decision for the Supreme Court, Justice Amy Coney Barrett stated that the plaintiffs can’t ‘manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.’

The ruling is unlikely to silence widespread protests since 2020 against social media censorship of independent media voices by huge corporations with government contracts.

Are we living through George Orwell’s “1984” or can Free Speech and Freedom of the Press survive?

“It’s not the death of the First Amendment,” said Garrett Ziegler who published “Report on the Biden Laptop” [see excerpts.] The decision however delivered “a wicked left hook to it,” he added.

The ruling should remind all of the obvious, said Free Press Foundation President Larry Ward. “We cannot rely on the courts to save the day.”

“To preserve the First Amendment, we must fight legislatively and at the ballot box,” he added.

The lawsuit, spearheaded by Republican state attorneys general in Missouri and Louisiana, had fared well in the lower courts, at one point resulting in an unprecedented injunction that blocked top government officials from communicating with social-media companies about removing “content containing protected free speech” from their platforms.

The states claimed executive branch officials for years pressured digital platforms to censor conservative speakers. That campaign reached a fever pitch in 2021, they alleged, after Joe Biden took office and sought to promote Covid-19 vaccines and counter President Donald Trump’s claims that the 2020 election was stolen.

Barrett wrote that the lawsuit improperly asked the high court “to conduct a review of the yearslong communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from exercising such general legal oversight of the other branches of Government.”

Louisiana Attorney General Liz Murrill released a statement on social media calling Wednesday’s ruling “unfortunate and disappointing.”

“A majority of the Supreme Court gives a free pass to the federal government to threaten tech platforms into censorship and suppression of speech that is indisputably protected by the First Amendment,” Murrill said. “The majority waves off the worst government coercion scheme in history.”

The ruling crossed ideological lines. Two of Barrett’s fellow conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, joined her ruling, as did the court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Three other conservatives dissented. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, said the government’s conduct was blatantly unconstitutional.

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech,” Alito wrote. “Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”

The Biden administration told the court that government officials have their own free speech rights, and there is nothing untoward about using the bully pulpit of the White House to push for industry reforms.

The plaintiffs in the case did manage to obtain documents through the discovery process showing startling back-channel efforts by federal officials to have their views prevail in the online debate, particularly surrounding the pandemic.

And the documents showed some social media firms to be strikingly compliant.

One official in the Biden White House told Facebook he was “gravely concerned” that the firm was driving “vaccine hesitancy” and demanded the company solve the problem.

“We want to know that you’re not playing a shell game with us when we ask you what is going on,” wrote Rob Flaherty, the White House’s director of digital strategy.

Another White House official warned that they were “considering our options on what to do.”

Facebook promised changes to “gain your trust.”

Those sorts of exchanges led a district court to issue a sweeping injunction against some federal officials’ ability to communicate with social media companies.

On appeal, the 5th U.S. Circuit Court of Appeals agreed that the government’s actions amounted to censorship but narrowed the injunction.

But the Supreme Court said Wednesday that the lower courts were wrongly swayed by the unseemly back-and-forth.

The plaintiffs never proved that any of those White House or other federal officials’ communications led to their specific posts being censored, Justice Barrett concluded. And that undercuts their case for an injunction to prevent future actions.

Following the decision, House Judiciary Committee Chairman Jim Jordan said legislative action is needed to curb government censorship of content on social media platforms.

“The First Amendment is first for a reason, and the freedom of expression should be protected from any infringement by the government. Our country benefits when ideas can be tested and debated fairly on their merits, whether online or in the halls of Congress,” Jordan said after the ruling.

“The Committee and the Select Subcommittee on the Weaponization of the Federal Government have uncovered how and the extent to which the Biden Administration engaged in a censorship campaign in violation of the First Amendment. While we respectfully disagree with the Court’s decision, our investigation has shown the need for legislative reforms, such as the Censorship Accountability Act, to better protect Americans harmed by the unconstitutional censorship-industrial complex. Our important work will continue,” he added.

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