"Teeing up the next one": Expert says SCOTUS "roadmap" helps right-wingers revise "deranged" cases

The Supreme Court’s Wednesday reversal of a ruling that limited how the Biden administration can urge social media companies to remove misinformation is a "minor victory" for anti-disinformation efforts – while posing the latest reversal of a Fifth Circuit Court of Appeals ruling and leaving unclear how far the government can go to pressure the suppression of free speech, legal experts say.

Two states and five social media users had sued dozens of executive branch officials and agencies, claiming that the Biden administration had violated the First Amendment by pressuring social media platforms to censor their speech.

Last September, the Fifth Circuit upheld a district court ruling that government officials had “coerc[ed]” or “significantly encourag[ed]” the platforms’ moderation decisions. The court then narrowed a District Court injunction that restricted the administration's communications with social media companies.

But the Supreme Court in its 6-3 Wednesday opinion pointed out issues with the Fifth Circuit's decision and remanded the case for further proceedings.

"The Fifth Circuit relied on the District Court's factual findings, many of which unfortunately appear to be clearly erroneous," reads the ruling.

The justices said the Fifth Circuit had "glossed over complexities in the evidence" by attributing every platform's decision to the Biden administration. The ruling said the circuit had also wrongly treated defendants, plaintiffs and platforms as a "unified whole."

“Over the last couple of years, the Fifth Circuit has become one of the most aggressive circuits for challenging government, power, administrative and state issues, and this is the latest in a string of rebukes that they've received,” Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School, said. “There's a question of how much of this is the Supreme Court being skeptical of and really pushing back on the Fifth Circuit, and how much of this is really case specific?”

The Supreme Court in its 6-3 Wednesday opinion said the individual and state plaintiffs failed to establish standing to seek an injunction against the executive branch officials.

To get standing, the plaintiffs would have had to prove they will soon suffer an injury traceable to the government. 

“The ruling makes it clear that states and ordinary users of social media platforms do not have standing to challenge government efforts to persuade big tech to consider removing content that is dangerous to the public," former federal prosecutor and University of Michigan law professor Barb McQuade told Salon.

McQuade said that going forward, it appears that legal challenges “will have to come from the tech companies themselves.”

McQuade also called the “case a minor victory for efforts to combat disinformation.”

The opinion centers around what restrictions the First Amendment places on what’s known as jawboning – a term dating back to the 1970s that refers to when an administration urges businesses to adopt a certain policy.

“We have the jawboning question, which is the government instructing, nudging, or encouraging in First Amendment problematic ways, the platforms to act in a certain way,” Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School, said. “Another background question in this case is: were the platforms acting as an arm of the government at the government's behest?”

The Supreme Court’s opinion highlighted the case of plaintiff Jill Hines, a Louisiana healthcare activist who leads the anti-mask and vaccine mandate group Health Freedom Louisiana.

In July 2021, Facebook de-platformed one of Health Freedom’s groups after a post had asked members to contact state legislators about health freedom bills.

The group’s de-platforming came three months after a White House official sent Facebook “suggestions” that included ending group recommendations for groups that have spread COVID-19 or vaccine misinformation. Facebook then told that official that it “had already removed all health groups from our recommendation feature.”

"It is hard to know what to make of this,” the justices wrote in their ruling.

The ruling said it’s hard to say whether Facebook was implementing the White House’s policy or its own.

The opinion said Hines made the “best showing of all the plaintiffs” – but said her “weak record gives her little momentum going forward.”

The ruling said without “proof of an ongoing pressure campaign” by the White House, it’s “entirely speculative” to link any future Facebook moderation to the administration.

In its amicus brief, the Knight First Amendment Institute highlighted another email exchange between White House officials and Facebook.

In one exchange, a White House official sent Facebook a news article and alleged the platform of failing to control misinformation.

One day later, another administration official warned that the White House was ‘[i]nternally.. considering our options on what to do about it,’” according to the amicus brief. The official complained Facebook was not "'trying to solve the problem.'"

Lawyers for the Knight First Amendment Institute said that interaction “may have been coercive.”

And Justice Samuel Alito cited the comments in his dissent as an example of the government "placing unrelenting pressure on Facebook to suppress Americans’ free speech."

The Supreme Court's majority ruling cited the interaction as an example of communications that were "more aggressive than others."

But the 6-3 ruling described those comments as part of the administration's efforts to pepper social media platforms with detailed questions about their policies and push them to suppress certain content at a time when Facebook in particular "'was one of the top drivers of vaccine hesitancy.'”

"Publicly, White House communications officials called on the platforms to do more to address COVID–19 misinformation—and, perhaps as motivation, raised the possibility of reforms aimed at the platforms, including changes to the antitrust laws and 47 U. S. C. §230," reads the ruling.

Overall, the justices in the majority ruling said that Facebook and other social media platforms began moderating COVID-19 misinformation content before the government got involved.

Social media platforms also at times explained to White House officials that "flagged content that did not violate company policy," reads the ruling.

Alex Abdo, litigation director of the Knight First Amendment Institute who was counsel of record for the amicus brief, said the Supreme Court was right to reverse the Fifth Circuit.

“The opinion was clearly skeptical of, not just skeptical – rejected the plaintiff's claims that there was a vast conspiracy by the government to coerce the platforms into taking down their speech,” Abdo told Salon.

But, he said he wished the court had provided more explicit guidance on how far the government can go under the First Amendment to pressure social media platforms into suppressing speech – particularly in an election year.

“The platforms are attractive targets for official pressure, and so it’s crucial that the Supreme Court clarify the line between permissible attempts to persuade and impermissible attempts to coerce,” Abdo said.

Abdo said it would be “fair” for the Biden administration to read the opinion as reaffirming their past practice of providing guidance to platforms: “That they can try to persuade, but they cannot try to coerce.”

Abdo said the opposite is also possible: “It wouldn't surprise me if they decided it's just not worth the risk of a future suit with better claims being allowed to go forward, and so distancing themselves from the platforms.”

Abdo said Congress could offer clarity by passing legislation to require the government to disclose its efforts to persuade platforms to take down speech.

“That would I think alleviate the risk that the platforms will interpret something that is on its face meant to be only persuasive with an actual threat,” Abdo said.

The Supreme Court could shed light on similar questions in upcoming days via the NetChoice, LLC v. Paxton case, which questions the constitutionality of a Texas state law that prohibits social media platforms from censoring user content and sets strict disclosure requirements.

“A lot of folks are trying to read tea leaves,” Hurwitz said. “In this case, the Alito dissent has some language about platforms being private actors not subject to the First Amendment.

Legal observers say the ruling marks the latest in a series of Supreme Court rulings reversing decisions by the notably conservative U.S. Court of Appeals for the Fifth Circuit, which sprawls Texas, Mississippi and Louisiana.

"The reason that people are bringing cases like these is because they think that before this conservative Supreme Court, they have a real shot at getting five votes for extreme right-wing legal theories," said Jay Willis, a lawyer and editor-in-chief at Balls & Strikes.

In May, the Supreme Court reversed a Fifth Circuit ruling that found the Consumer Financial Protection Bureau's funding violated the Constitution's separation of powers and Appropriations Clause. 

The Supreme Court's 7-2 decision found that the underlying statute authorizing the CRPB satisfies the appropriation's clause. 

Last week, the Supreme Court in an 8-1 ruling upheld a federal law that prohibits the possession of firearms by individuals subject to domestic violence restraining orders. The Fifth Circuit had agreed that the law was unconstitutional under New York State Rifle & Pistol Association v. Bruen, in which the U.S. Supreme Court established a new standard that modern gun control laws must be "consistent with the Second Amendment's text and historical understanding." 

"What we're seeing here is a series of really sort of deranged cases bubbling up from the Fifth Circuit where the Supreme Court conservative super majority is basically having to say: 'Look we agree with you, Fifth Circuit broadly, but we can't countenance this,'" Willis said.

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Willis noted that those three decisions all had buy-in from conservative justices: the Wednesday 6-3 ruling was authorized by Justice Amy Coney Barrett and joined by Justice Brett Kavanaugh.

But, he stressed: "The Supreme Court turning some of them away is not evidence that the Supreme Court is moderate in any sense of the word. It just means that the Supreme Court is not as far to the right as the furthest right people in the entire federal judiciary."

Willis added that just because this case hasn't ended up as the conservative legal movement hoped, that doesn't mean the issue is resolved.

"Even if they don't get everything they want in the case, there's still a fully laid out explained opinion from conservative justices that provides sort of like hints or a roadmap for conservative legal activists going forward," Willis said. "How to frame their next challenge, what they could do to get around the majority's objection to the case. A lot of the way that the development of the law works is over time."

Hurwitz said he questioned if the case would end up being litigated again. 

“I wonder how unique it was to the setting of both the COVID era and the 2000 election - a unique moment in our history and the role of the platforms,” he said. 

“It's entirely possible that folks aren't going to let it go and there will be another bite of this apple,” he continued. “But that would require better facts, better plaintiffs, in order to make that happen. And I don't know that that's really likely to happen.”