Supreme Court Uses Biden Social Media Case To Slap Down 5th Circuit Yet Again

The Supreme Court on Wednesday ruled that a couple of red states and individual far-right actors lacked standing to ban the Biden administration from urging tech companies to suppress disinformation.

Similarly to the recent mifepristone decision, pegging the decision to standing allowed the Court to skirt the potential First Amendment landmines in the merits — which is what they’re supposed to do, but sometimes don’t when they’re eager to reach a particular result.

Justice Amy Coney Barrett wrote for the majority. Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, wrote the dissent.

Wednesday’s ruling is just the latest example of the Court smacking down the 5th Circuit Court of Appeals, which it’s also done in recent high-profile cases including the aforementioned one centered on attempts to restrict mifepristone (FDA v. Alliance for Hippocratic Medicine) and one pushing for domestic abusers to keep their guns (United States v. Rahimi).

The Court had signaled its discomfort with the lower court decisions — which the government, in unusually heated briefs, had called “startling,” “novel and disruptive” and a “radical extension” of current doctrine — by both administering stays and raising an eyebrow to the plaintiffs’ theory of standing during oral arguments. 

The 5th Circuit, following the lead of U.S. District Judge Terry Doughty of Louisiana (a Trump appointee), had fewer qualms. Doughty had called the government’s flagging of posts to social media companies, much of which concerned anti-vaxxer content at the height of the COVID-19 pandemic, a “dystopian scenario,” in which the “United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”

The 5th Circuit narrowed Doughty’s ruling, but still barred a wide swath of government officials from these communications with the tech companies. The appellate court at one point in the proceedings preemptively granted the plaintiffs’ request for rehearing to sweep more officials into the ban before the government even had a chance to respond to it — something the court later told TPM was merely a clerical error.

The 5th Circuit concluded “that the officials’ communications rendered them responsible for the private platforms’ moderation decisions. It then affirmed a sweeping preliminary injunction,” Barrett wrote. “The Fifth Circuit was wrong to do so.”

She later accused the appellate court of “glossing over complexities in the evidence” and relying heavily on the district court’s findings, which “appear to be clearly erroneous.”

In his dissent, Alito made clear that he hews much closer to the Doughty theory of the case, intoning that the case “is one of the most important free speech cases to reach this Court in years,” and referring to the plaintiffs, which include the likes of conspiracy theory “outlet” Gateway Pundit’s Jim Hoft, as “victims.” 

While Barrett emphasized that the plaintiffs struggled mightily to connect the “suppression” of their speech to government intervention, rather than the social media companies’ enforcement of their own policies, Alito disregarded the tenuous connections in favor of painting a picture of sheer tyranny.

“The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think,” he fumed.

Much of Alito’s dissent is an exercise in tone policing, clutching pearls at the White House’s “inflammatory rhetoric” in its conversations with Facebook about the rapid spread of anti-vax content, while the meek, “subservient” platform “went out of its way to strike a conciliatory tone.” 

At one point, Alito compares White House officials’ warnings that they may crack down on the platforms if the disinformation isn’t stemmed to “death threats.” 

Read the ruling here: