The U.S. Supreme Court reversed a lower court’s injunction prohibiting the federal government from colluding with Big Tech companies to censor posts it doesn’t like, effectively green-lighting the Biden administration’s ability to carry out such operations during the 2024 election.
“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction,” Associate Justice Amy Coney Barrett wrote for the court’s majority.
Chief Justice John Roberts and Associate Justices Brett Kavanaugh, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson signed onto Barrett’s opinion. Associate Justice Samuel Alito authored the minority’s dissent, which was joined by Associate Justices Clarence Thomas and Neil Gorsuch.
Filed by Missouri and Louisiana, the lawsuit before the high court alleged that the federal government’s collusion with Big Tech companies to suppress Americans’ online speech violates the First Amendment. Shortly after taking power in January 2021, the Biden administration began coordinating with social media giants to censor posts they deemed unfavorable, even if said posts contained factually correct information.
The administration specifically targeted posts containing claims and facts about government Covid policies, according to unearthed communication records.
U.S. District Court Judge Terry Doughty ultimately agreed with the plaintiffs’ arguments, issuing a preliminary injunction on July 4, 2023, that barred federal agencies from colluding with Big Tech to censor posts they don’t like. The 5th Circuit Court of Appeals upheld Doughty’s injunction in September. While the initial ruling did not include the Cybersecurity and Infrastructure Security Agency (CISA), the court later issued a corrected ruling that also prevented CISA from colluding with Big Tech to squash free speech online.
The U.S. Supreme Court, however, lifted the 5th Circuit’s injunction in October, effectively allowing the federal government’s censorship operations to resume while it considered the merits of the case.
The FBI confirmed to The Federalist last month that it had resumed collusive efforts with social media companies to censor posts it claims are “disinformation” ahead of the 2024 election. Neither CISA nor the State Department would confirm to The Federalist whether they had similarly resumed such communications with Big Tech when recently pressed on the matter.
In her majority opinion, Barrett claimed that “[a]t this stage” of litigation, plaintiffs have not “established standing to seek an injunction” against the named federal agencies and that as such, the Supreme Court “lack[s] jurisdiction to reach the merits of the dispute.”
“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” Barrett wrote. “This Court’s standing doctrine prevents us from ‘exercis[ing such] general legal oversight’ of the other branches of Government. … We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.”
In his dissent, Alito noted that “[w]hat the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional” in a prior case before the court but that the feds’ censorship shenanigans documented in Murthy v. Missouri is “no less coercive.” In fact, the associate justice highlighted how the Biden administration’s efforts were “even more dangerous” due to the high-level government officials involved.
“It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so,” Alito wrote. “Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”
The high court’s Wednesday ruling has major implications for the upcoming 2024 election.
Leading up to the 2020 election, for example, CISA upped its censorship efforts by flagging posts for Big Tech companies it claimed were worthy of being censored, some of which called into question the security of voting practices such as mass, unsupervised mail-in voting. This was done despite CISA privately acknowledging the risks associated with such practices.
The FBI also took on a censorship role during the 2020 election, in what has been characterized as a clear attempt to help Joe Biden’s election prospects. In the months leading up to the November contest, the agency — which had authenticated Hunter Biden’s infamous laptop as early as November 2019 — was issuing warnings to then-Twitter and Facebook to be on the lookout for so-called “Russian propaganda” and “hack-and-leak operations” by “state actors.”
After the New York Post dropped its bombshell story on the laptop weeks before the 2020 contest, both companies went out of their way to censor the story and prevent its reach.
On Twitter, users were not permitted to share the story, even via direct message. The website further took down links and added warnings that it may be “unsafe.” Meanwhile, Facebook announced shortly after the story broke that it would be “reducing [the story’s] distribution” pending verification by “third-party fact checking partners.”
Meta CEO Mark Zuckerberg later admitted during a 2022 Joe Rogan podcast interview that the company’s decision to suppress the story was based on the FBI’s warning.
Under the Supreme Court’s recent ruling, such efforts are now permitted.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
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