June 26, 2024

"Writing for the majority, Justice Amy Coney Barrett said companies such as Facebook and YouTube have long-standing content-moderation policies that place warning labels on certain posts and delete others."

"The challengers, Barrett wrote, did not demonstrate that the companies’ actions to remove posts were traceable to the government. Barrett said a lower court got it wrong when it 'glossed over complexities in the evidence' by attributing to the Biden administration every company decision to remove or moderate content. 'While the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,' she wrote."

From "Supreme Court allows White House contacts with social media firmsIn a 6-3 ruling, the majority said the challengers did not have legal grounds — or standing — to bring the case against the Biden administration" (WaPo).

ADDED: Here's the NYT piece, by Adam Liptak.
“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the yearslong communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” Justice Amy Coney Barrett wrote for the majority. “This court’s standing doctrine prevents us from exercising such general legal oversight of the other branches of government.”

Justice Samuel A. Alito Jr, joined by Justices Clarence Thomas and Neil M. Gorsuch, dissented.

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

AND: Here's the text of the opinion.  The case is decided on the threshold issue of standing, so the majority does not reach the merits of the First Amendment question. The plaintiffs were seeking prospective relief, so they needed a concrete and particularized injury that would be redressable by that form of relief. Past injury is not enough:

Lyons is a well-known case, reviled by liberals, in which a man who was choked nearly to death by the police was held to lack standing to seek an injunction restricting police chokeholds. His injury was in the past, so he had standing to seek damages, but prospective relief is another matter, and the fact that no one knows the identity the future victims in advance did not change the analysis. Standing is a constitutional requirement, and if you don't have it, you don't have it. Let the chips fall where they may.

95 comments:

PB said...

"That's a nice business you have there, it'd be a shame if something happened to it." Now becomes a powerful and no longer ironic phrase.

Aggie said...

Chilling.

Mike (MJB Wolf) said...

Damn. "Because the court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.” So do I. Barret and Kavanaugh are a sore disappointment here. There is no question the government was behind the suppression. Scary Poppins was bragging about doing it for Biden.

Breezy said...

So it’s lack of standing that led to this result…? Barrett indicates the problem was just too large to handle effectively. They couldn’t narrow one vector without affecting others too negatively.

Yancey Ward said...

This however does outline what a plaintiff needs to do to get a case that makes it over the standing hurdle. Smart lawyers will figure out how to do that. I would suggest to red states that they consider enacting their own free speech protections for their residents against the social media platforms.

RCOCEAN II said...

Just what you'd expect. Roberts and 3 liberals, joined by Kavanaugh and ACB. One again the Liberal/leftists all vote as a bloc because its Biden being criticized, and 3 of 6 Republicans break ranks and join them.

n.n said...

The Court advises discernment. Will democracy be fooled?

RCOCEAN II said...

You could put 9 Republican Justices on the Court and you still wouldn't get a counter-revolution. All the massive society changing decisions and exercises of judicial power only are done to help the Left.

republicans like the status quo. Judicial decisons just move us further leftwards.

Breezy said...

Game on: President Trump should censor the left.

RideSpaceMountain said...

Like Trump did with Truthsocial, we're going to have to build it ourselves. The techies are all in on the brave new world. If they're going to collaborate with the feds to ostracize 50% of the American public, than that 50% needs to hammer another nail in the cause of seperation.

We are two different countries. We need to stop kidding ourselves.

mindnumbrobot said...

'While the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,' she wrote.

Damn that's naive. But, this isn't the last we have heard of this.

n.n said...

Google this, Bing that... perchance Baidu. Duck, Duck, search. Yahoo!

Disclaimer: this result may have been served by an anthropogenic intelligence (AI).

n.n said...

The Court advises discernment. Will demos-cracy be fooled?

doctrev said...

I'm fine with the decision. Economic pressure is getting to the point Google and Microsoft can't guarantee their survival after terminal convergence. Meanwhile, Twitter solved itself and President Trump has his own social platform.

More importantly, I don't actually expect the courts to rein in Big Tech or the bankers. Consent of the governed will ideally bring both judiciary and the corporations into line. Google might think they're untouchable, but so did Standard Oil and AT&T.

Enigma said...

The problem is that group action emerges from a collection of millions of individual attitudes and actions. Personal priorities and bigotries, be it old school Christians and segregationists or modern Woke and rainbow flag people, merge into broad censorship and bias.

Pick your flavor of bias, but human nature is to be tradition bound and biased. The safe "good times" come between the ideological extremes -- when the Spanish Inquisition, the East German Stasi, or pre-2016 Hollywood lacks the ability to execute utopian and autocratic wishes.

The trick is to use the language of the establishment against the establishment. Give 'em a pyrrhic victory. It's always how the opposition gets it foot in the door, and then they turn evil once they have power. Human nature.

Wa St Blogger said...

This has the appearance of a dodge. Maybe it happened, but you can't stop it in the future because of standing. Wait until they do it again and then get back to us.

Temujin said...

Again, I'm thankful for Elon Musk.

Sebastian said...

"the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment"

So what?

The standing evasion aside, SCOTUS could at least be honest about "the evidence." "The evidence" shows government pressure well above and beyond "their own judgment." That's the problem. Face it, "conservative" justices.

Conclusion: Elon is the most important man in the world. Before the deep state gets him.

jpg said...

Yeah. Nobody has standing.
How convenient.
Amy Coney Barret.
Spineless jellyfish.

Steve said...

Seems like Standing hates Liberty.

Just a hint of discovery out of Facebook would have been interesting

What’s next? A suit against the federal government and the specific employees conspiracy to deny civil rights?

planetgeo said...

The solution is obvious, since the Supine Court continues to snooze. Tesla needs to increase Musk's salary so he can buy at least 50% of the social media tech companies.

Hassayamper said...

Disappointing. I didn't expect this.

Congress should take action, as soon as we have a Republican majority, to put a permanent stop to government bureaucrats attempting to censor people on social media. I don't expect anything except slow motion Stalinism from the Democrats.

The notion of "Standing" is being abused by corrupt, biased, and cowardly judges. In my view any citizen has more than enough standing to bring suit against the government for stifling free speech like this.

Joe Smith said...

We've been living with government censorship for decades in the MSM.

So now when Trump gets in he can just threaten to shut down Facebook et al.

Great.

Big Mike said...

Alito, Thomas, and Gorsuch have it right and the six are fools.

Dave Begley said...

The trial court "glossed over" the evidence.

It is a bedrock principle of appellate jurisprudence that appellate courts defer to a trial court's finding of facts. An appellate court is not just a "smarter" trial court.

gspencer said...

An Article III bar set so high that the plaintiffs have an injury but no remedy.

Therefore, no right.

Original Mike said...

"…but prospective relief is another matter, and the fact that no one knows the identity the future victims in advance did not change the analysis. "

Since you can never know the future, prospective relief is impossible. The government is free to do whatever it wants.

Dave Begley said...

Ann Althouse is a super smart constitutional law professor emerita. Can Prof. Althouse explain standing?

Is there any way to reconcile these cases?

Rich said...

“Alito, Thomas, and Gorsuch have it right and the six are fools.“

What it showed was a bunch of wild conjecture, ridiculously wrong claims, and laughably foolish interpretations of basic everyday content moderation and information sharing.

And still, a third of our Supreme Justices backed it.

Original Mike said...

Blogger Temujin said..."Again, I'm thankful for Elon Musk."

Amen.

gspencer said...

If Trump's immunity case wasn't announced today, will it be released tomorrow?

Or will the Court not issue its opinion until October when its new term begins?

mikee said...

Standing decision is correct. Similar to why Dobbs got it right, sending abortion as a political issue back to the state legislatures, because that's what the Constitution says.

The actual issue of this case, administration collusion with private entities to censor political opponents, will come back again and again and again until the Supremes face their obligation, with undeniable proper standing of the plaintiffs, to stop the government infringements on 1st Amendment rights. Perhaps with RICO charges for all involved, as well.

campy said...

Court packing staved off for another few weeks.

tim maguire said...

It was a cowardly act by the court to dodge a vital issue.

How does this standing analysis comport with Roe v Wade? By the time the case reached the court, Roe was no longer pregnant. Why didn't her case fail for lack of standing?

The reason is this: "capable of repetition, yet evading review"

The court recognized that some issues are time sensitive and the usual standards would mean some rights could never be redressed in court because of the timing issue. (In that case, pregnancies are 9 months, but getting to the Supreme Court takes years).

That applies here. The court has through inaction created a carve-out to the first amendment.

Charlie Eklund said...

I’ve been looking for a definitive, rock-solid reason to walk away from social media and this is it. Thanks Supremes!

Rusty said...

Rich said...
“Alito, Thomas, and Gorsuch have it right and the six are fools.“

"What it showed was a bunch of wild conjecture, ridiculously wrong claims, and laughably foolish interpretations of basic everyday content moderation and information sharing.

And still, a third of our Supreme Justices backed it."

Here is why no one here takes you seriously and you consisitantly lose arguments. The court said no such thing, Rich. The court said that the plaintiffs have no standing in rgards to their prospective claim.

Narayanan said...

why not just say Tech has to maintain openly accessible file on request by Authorities?
something like police blotter of bygone eras

Indigo Red said...

Perhaps a case of can't see the trees for the forest. Government is too large to charge, however, a few choice individuals can be found to indict. Exactly who in Government improperly used their influence?

narciso said...

What independent evidence what is she talking about

rehajm said...

I’ll repeat what got me tagged as not worthy of engagement: Just get off Twitter.

rehajm said...

Government’s power of coercion has increased, but no matter…

Milo Minderbinder said...

Yeah, standing.... I get it and it cuts both ways. However, J. Barrett, if social media "often exercised their own judgment," by implication they often exercised judgments that weren't solely their own. That remains a very big problem. Vacate the temporary relief order, send the case back, but by all means don't ignore the evidence that government directed social media what to do.

Drago said...


mikee; "The actual issue of this case, administration collusion with private entities to censor political opponents, will come back again and again and again until the Supremes face their obligation, with undeniable proper standing of the plaintiffs, to stop the government infringements on 1st Amendment rights."

Just like the Christian Colorado baker.

narciso said...

Twitter is the only platform perhaps tele gram that believes in free speech inatagram google youtube not so much

Michael K said...

How long before Barrett votes with the lefties ?

narciso said...

Also substack but the stupid seems to be spreading

deepelemblues said...

A shameful ruling. I am finding myself less and less opposed to vituperative criticism of the court, from anyone, as Roberts-Kavanaugh-Barrett continue to disgrace their robes with this kind of nonsense. The government advocating for censorship in any way, outside of that sanctioned by Congress in (declared) wartime, should be anathema to any court.

narciso said...

See seth abramson for example

narciso said...

https://www.emerald.tv/p/substack-has-gone-woke

MartyH said...

If the FBI requests X to take down a post and Musk notifies the author but does not take down the post, does the author now have standing to sue?

mccullough said...

Saying that a plaintiff can’t get an injunction because he can’t prove that a future post will be censored through government coercion is one thing.

Saying a plaintiff hasn’t proved (“traced”) that a past post was censored due to government coercion is another.

Musk released a lot of the evidence to the public so we can make up our own mind.

Barrett is a typical government employee.

Big Mike said...

And here I had been hoping that the Court would revisit Chevron deference on the self-evident grounds that the federal bureaucracy makes decisions on politicsl grounds and not based on technical expertise. I guess Kavanaugh, Roberts, and Barrett are stuck in the good ol’ days.

D.D. Driver said...

Barrett blows and Kavanaugh sucks. I can't believe the wars the GOP went through to get these people confirmed. Bush was one for two. Trump was an awful one for three. Love Gorsuch though.

Can we end the myth that there is a 6-3 "conservative" majority. There is not. There is a 3-3-3 divide.

D.D. Driver said...

Game on: President Trump should censor the left.

This is why I cannot vote for Trump. His supporters want to see the Constitution burn to "own the libs."

chuck said...

Shameful.

narciso said...

Maybe the psychos brought to her door step by schumer and un charged by garland have sinething to do with it

Anthony said...

'While the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,' she wrote.

"Often"?

How "often"? 20% of the time? 50%? So it's okay if they only allow the gov't to censor a portion of the time???

narciso said...

https://x.com/FBillMcMorris/status/1805971454845923587

Narayanan said...

MartyH said...
If the FBI requests X to take down a post and Musk notifies the author but does not take down the post, does the author now have standing to sue?
=================
I repeat
why not public demand to Tech has to maintain publicly accessible file showing such requests made by Authorities with names etc.? something like police blotter of bygone eras

USSC says racketeering is ok if Govt is collaborating/seeking collaboration = Fascism

Steve said...

D.D. Driver said...

This is why I cannot vote for Trump. His supporters want to see the Constitution burn to "own the libs."

What ever rationalization you need.

When picking between "Some guy on Althouse" or the "corruption of the White House and the administrative state". At least chose the lesser of two evils.

Real American said...

I guess it was merely a coincidence that social media companies moderation policies just happened to magically become that you couldn't post anything that disagreed with the government's official (incorrect and unscientific) position on COVID. GTFOH

Dear corrupt left, go F yourselves said...

You shall not speak truth to governmetn power.

D.D. Driver said...

When picking between "Some guy on Althouse" or the "corruption of the White House and the administrative state"

If only the options were between one defender of the Constitution and one enemy. That is not the case. It is two enemies of the Constitution. We are voting on which one of of neighbors should go to the gulag. I'd rather stay home than vote for Biden or Trump.

Take a look at Trump's own words and tell me why I should not believe him.

https://web.archive.org/web/20221204214848/https://truthsocial.com/@realDonaldTrump/posts/109449803240069864

who-knew said...

Hassayamper said: "In my view any citizen has more than enough standing to bring suit against the government for stifling free speech like this." I agree. If the government is conspiring with others to censor speech, then any citizen should be be able to sue to stop them. It was great growing up in a free country, I'm going to miss it in my old age.

narciso said...

This administration has actually done it abd faced no long term consequences while enabling criminals like fauci like the head of moderna et al

Breezy said...

“This is why I cannot vote for Trump. His supporters want to see the Constitution burn to "own the libs."”

Apparently you missed the fact that our Constitution is smoldering already with this ruling. My point was it won’t be corrected until the left feels the heat. Trump won’t do what I suggested, silly. He is a law and order guy.

loudogblog said...

I'm always confused when the courts say that someone doesn't have standing when it comes to federal government issues. Don't government policies affect almost everyone? Anytime the government spends money, they're spending the money of the taxpayers, so shouldn't a taxpayer have standing if the government spends money or incurs debt in their name? Also, if the federal government curtails or distorts a civil right, doesn't that apply to all citizens?

If the federal government uses intimidation to force social media companies to censor information, that affects all social media users in a negative way.

Patrick Henry said...

Standing is the last refuge of cowardly judges.

Yes, I grasp the concept of standing, but it's too often used as a way of avoiding deciding a difficult issue.

NKP said...

Barrett and Kavanaugh are Trump failures. Not enough sugar to coat them.

Barrett was a one-trick-pony (Roe v Wade). The fact that all Kavanaugh's clerks were women might shoulda been a red flag.

How about a Texan next time? Cruz? Paxton?

narciso said...

Who put in the selection pool in the first place vs how many other candidates

Known Unknown said...

“This is why I cannot vote for Trump. His supporters want to see the Constitution burn to "own the libs."

The Constitution as-written so long ago has guaranteed the government you have today.

NKP said...

Again, I'm thankful for Elon Musk.

Note to Elon: Make haste to Kapiolani Med. Center in Honolulu, and get yourself one of those Born-in-the-USA certificates.

I think we're gonna need you, man.

gilbar said...

"The challengers, Barrett wrote, did not demonstrate that the companies’ actions to remove posts were traceable to the government..

so which was it?
the majority said the challengers did not have legal grounds

was it that the challengers did not demonstrate.. or that the challengers did not have legal grounds?

and WHO WOULD have legal grounds to complain about government censorship?

Richard Dolan said...

"Let the chips fall where they may."

That would be the appropriate reaction if standing were a matter of clear rules uniformly applied. The reality is quite different, and standing doctrine is often used (as I suspect it was here) to avoid having to address difficult and divisive issues. There is a commentary about the standing doctrine complaining that it's too vague and outcome-oriented because there's so much play in its joints, particularly in cases like this one broadly attacking governmental policies. Whether an alleged injury is sufficiently concrete or particularized or indicative of future irreparable harm turns on very elastic concepts. Any judge looking to reach a particular result -- whether that result is to address the merits or duck them -- can maneuver through that maze pretty easily. You see it often in environmental cases, for example, where the alleged injury is posited at a high level of generality (an injury to the enjoyment of the natural environment, for example) to sustain standing or even in the cases attacking Biden's student loan cancellation policies (standing sustained based on a very broad reading of its potential impact on the cost of Missouri's student financing programs).

Justice Gorsuch had a short concurrence in today's other decision, in which the Court (per Kavanaugh) held that gratuities don't count as bribes. Kavanaugh's opinion offered six reasons for his conclusion that the federal statute at issue didn't support the Gov't's argument. Gorsuch wrote a short concurrence saying that the Court's (long) decision really just turned on the rule of lenity which instructs courts to read ambiguous criminal statutes in favor of the defendant rather than the prosecutor, rather than the list of factors trotted out by the Court to reach the result. He suggested that the case could have been decided in a few paragraphs. In the same way, I think this decision ostensibly turning on a finely detailed parsing of the particular facts alleged by each plaintiff was really the Court's way of ducking a difficult First Amendment and separation of powers fight having an obvious partisan angle.

The upside of the Court's approach to dump the case on standing grounds, rather than, say, on political question or similar grounds, is that it says nothing about substantive First Amendment law (or substantive law on any subject). And the NRA v. Vullo decision from earlier this term certainly lessens any such collateral consequences.

Achilles said...

Big Mike said...

Alito, Thomas, and Gorsuch have it right and the six are fools.

They aren't fools.

They are traitors.

The entire DC establishment is anti freedom.

Achilles said...

D.D. Driver said...

Game on: President Trump should censor the left.

This is why I cannot vote for Trump. His supporters want to see the Constitution burn to "own the libs."

You managed to bring 90 IQ and 4th grade immaturity together in one comment.

Excellent work.

Achilles said...

gspencer said...

An Article III bar set so high that the plaintiffs have an injury but no remedy.

Therefore, no right.


I would like to attribute this to cowardice.

But everyone that stood for this "decision" was trained at Harvard or Yale.

That is the basic problem with our government right now. The people in it are overwhelmingly trained at these fascist finishing schools.

narciso said...

Thats an 8.0 on the high bar of stupidity bravo

The precautionary principle if there is such a high bar to publishing and disseminating samizdat how will people know there is already a little tail about 'election denial'

Witness said...

oh wow really that totally wasn't obvious at all

Wince said...

Any reason Trump can't fire the government workers who engaged in this unconstitutional conduct? (That would be a big part of any solution.)

Any reason this conduct can't be made illegal by statute?

Craig Mc said...

So who would have standing?

wendybar said...

WE all know who the leaker is, and they feel great, because they already got away with it once. What a joke this country has become.

Jonathan Turley
@JonathanTurley


What is it about abortion decisions and Supreme Court internal controls? https://washingtonpost.com/politics/2024/06/26/supreme-court-emergency-abortions-idaho-decision/ Two years ago, the Dobbs decision was leaked...


Maggie 🇺🇸⚾️
@LACentrist

In the last few decades, how many decisions have been leaked out of the Supreme Court? I can only think of two.

Dobbs and now Idaho.

The country’s highest court is compromised.
3:19 PM · Jun 26, 2024

Rabel said...

Reading through ACB's opinion it looks to me like the plaintiffs did a poor job of anticipating the standing question and preparing their case accordingly.

Barret raises several issues which could have been countered with a modestly better presentation on the specific harms, past and future, especially with regard to Jill Hines.

That said, it also looked like Barrett bent over backwards to justify the lack of standing call and thus avoid confronting the problem and the out-of-control Executive branch head on.

Try again with a different set of plaintiffs and better lawyers.

Jim at said...

His supporters want to see the Constitution burn to "own the libs."

No. This supporter realizes the left won't stop until they get a good, solid dose of their own medicine. That's not 'owning' them. It's making them choke on it so they stop doing it to us.

Wa St Blogger said...

Try again with a different set of plaintiffs and better lawyers.

It's sad that right and wrong hinge on the quality of the legal team and not on the merits.

Mason G said...

"This supporter realizes the left won't stop until they get a good, solid dose of their own medicine. That's not 'owning' them. It's making them choke on it so they stop doing it to us."

The "That's not who we are" folks would prefer to be force-fed horseshit sandwiches than to confront the reality of what's needed to get the left to stop.

Saint Croix said...

The Supreme Court could have ducked Roe v. Wade, if they wanted to, because of the standing issue. (Jane Roe had already delivered her baby and the child was two years old). But the court wanted to hear the case, so they heard it.

In this case, it's pretty obvious the Court didn't want to hear the case. So it overruled the lower court, without going to the merits.

If Roe was the height of the imperial judiciary, this case might be the nadir. "We don't want to do anything. Don't pay attention to us. It's an election year."

Nonetheless, the Court is signaling that it's perfectly fine for the federal government to use its power to censor and silence Americans in the public square. It's a truly despicable attitude to take.

Saint Croix said...

"Educate and inform the whole mass of the people...They are the only sure reliance for the preservation of our liberty."

(Thomas Jefferson)

We can't rely on our judges, that's for damn sure.

Rabel said...

"Standing is a constitutional requirement, and if you don't have it, you don't have it."

They had standing at the Federal District Court.
They had standing at the Federal Appeals Court.
They had standing in the option of three SC Justices.

Your statement could use an amendment to be more in line with the details of this particular case.

Rabel said...

"Standing is a constitutional requirement, and if you don't have it, you don't have it."

Also, since I'm looking for trouble, as with Doe/Dobbs you conflate current SC interpretation of the Constitution with the Constitution itself.

You spent a career explaining those interpretations to your students, so maybe that comes with the territory.

friscoda said...

Gorsuch is a gem (even when I don’t agree with his opinions).

Professor, any solution here? What the feds are doing is wrong and inimical to our liberties.

Robooh said...

Aside from the standing issue, it is also arguable that Government pressure did not cause the censorship because the implicit threat of regulation wasn’t very scary:
- It’s a dirty secret that big companies LOVE regulation (except anti-trust), as long as it is applied to their smaller competitors as well. Big companies have unlimited resources to throw at the compliance which is ruinous to their smaller brethren;
- Musk has showed that the threats can be disregarded in any event.
I think it’s more likely the corporate drones were panting to censor anyway, and talking regularly to the White House made them feel special.

walter said...

"the evidence indicates that the platforms had independent incentives to moderate content "
No. Fucking. Shit.

Platform or publisher.
Pick one.

boatbuilder said...

Shorter Supreme Court: A minor incursion by the U.S. Government on the protections guaranteed by the First Amendment will not prompt a strong reaction by the court. Proceed accordingly.

Ampersand said...

What was troubling to me about the government coercion was the sub rosa circumstance that the social media companies welcomed left wing coercion. If Trump had pulled this sort of thing, Facebook would have heroically opposed censorship. This decision objectively supports left wing censorship.