The American Supreme Court with a conservative majority refused on Wednesday to prevent the executive branch from intervening with social networks to obtain the removal of content that it considers problematic, particularly in health matters.
This is one of the two files on the agenda of this session of the Court regarding freedom of expression. The other, on which it must rule shortly, concerns the “censorship” of which conservatives claim to be victims on social networks, which have become “the agora of modern times”.
By a majority of six votes, those of the three progressives and three of the six conservatives, including the president of the Court, John Roberts, the judges consider that the plaintiffs, including the attorneys general of two Republican states, Louisiana and Missouri, do not have an “interest in taking action”, a condition for taking legal action.
The appeal decision, already suspended by the Supreme Court, is therefore annulled.
An ultraconservative appeals court had limited contacts between the White House as well as federal agencies, including health authorities and the FBI, and Internet giants, in the name of the First Amendment of the Constitution which guarantees the freedom of expression.
This decision, largely upholding a lower court injunction, ordered them to refrain from “pressuring” these companies or “significantly encouraging” them to remove content accused by the government of Democratic President Joe Biden of misinformation about COVID-19 vaccination or election results.
“Coercion”
Writing for the majority, Justice Amy Coney Barrett said the appeals court “erred” to grant the plaintiffs standing. She said none of the plaintiffs, Missouri, Louisiana and five private individuals, had “proved” a significant risk of harm attributable to federal officials’ contacts with social media.
She criticizes the court of appeal for having “ignored the complexities of the facts by attributing all the decisions of social networks at least in part” to state actors, while the Internet giants “have often exercised their own judgment.”
The plaintiffs “ask us, without any concrete link between their harm and the defendants’ behavior, to review years of communications between dozens of federal officials, in different agencies, via different social networks, on different subjects”, Judge Barrett lists.
In his opinion of disagreement, Justice Samuel Alito, joined by two of his conservative colleagues, considers on the contrary that a complainant has demonstrated her interest in taking action and that the Court should therefore have “ruled on this serious threat to the Prime amendment”.
“For months, senior government officials have applied relentless pressure on Facebook to suppress Americans’ free speech,” he laments, warning that “the success of this campaign of coercion makes it an attractive model for future officials who want to control what people say, hear and think.”
“Decisive election year”
House Judiciary Committee Chairman Jim Jordan, a Republican, also lamented the Supreme Court’s decision. “Freedom of speech should be protected from government interference,” he said in a statement, accusing the Biden administration of engaging in a “campaign of censorship.”
On the other hand, the NGO Accountable Tech, which advocates better regulation of social networks, welcomed in a press release the rejection of an “unfounded” complaint.
It was an attempt to “undermine the government’s abilities to defend the United States against campaigns of election interference and disinformation, particularly in a crucial election year,” according to the association.
During the arguments in March, most of the judges, except the most conservative, were inclined to reject the plaintiffs’ request.
Many, regardless of their orientation, were rather alarmed by the consequences of a decision which would prohibit the government from requesting the removal of publications dangerous to minors or to national security.