(Above) Featured image of the Supreme Court of the United States building in Washington, D.C., courtesy of Photo by Ian Hutchinson.
In a significant decision last week with far-reaching implications for online free speech, the Supreme Court temporarily allowed the Biden administration to collaborate with Big Tech companies in censoring Americans’ speech and debate until a final ruling is made in the Spring of next year.
As reported by Molly Hemingway, the Supreme Court’s decision to temporarily permit the Biden administration’s involvement in directing Big Tech censorship has been met with a mix of good and bad news. On one hand, it has agreed to review whether the administration’s censorship scheme violates the U.S. Constitution. This review holds the potential to shape the future landscape of online discourse in the United States.
However, the Court has also lifted a lower court’s temporary ban on federal agencies’ participation in the censorship scheme until a final decision is reached — expected before the end of June 2024. This lifting of the ban has raised concerns among free speech advocates, who fear that it may give the government leeway to employ heavy-handed tactics in controlling the presentation of views on digital platforms, which have become the primary medium for news dissemination.
Associate Justice Samuel Alito expressed his concerns in a strong dissent, joined by Associate Justices Clarence Thomas and Neil Gorsuch. Alito cautioned,
“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”
The federal court appeal filing stated,
“A group of social-media users and two states allege that numerous federal officials coerced social-media platforms into censoring certain social media content, in violation of the First Amendment.”
“For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of ‘misinformation’ on their platforms. In their concern, those officials— hailing from the White House, the CDC, the FBI, and a few other agencies— urged the platforms to remove disfavored content and accounts from their sites. And the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.”
The United States District Court for the Western District of Louisiana issued an injunction against various federal agencies and officials, referring to their involvement as a significant challenge to free speech. Chief Judge Terry Doughty, in his comprehensive 155-page memorandum, argued that if the plaintiffs’ claims held true, this case could represent an unprecedented assault on the principles of free speech in the United States.
The United States Court of Appeals for the Fifth Circuit largely concurred with the district court, highlighting the orchestrated campaign by federal officials to suppress millions of protected free speech postings by American citizens.
While the Biden administration maintained that lifting the ban is essential to prevent potential harm to free speech in the future, Justice Alito raised doubts about the validity of this argument. He highlighted that the federal government’s cited examples of potential harm appeared disconnected from the specific ban on censorship, leading to inquiries about whether the government’s actions are in line with the First Amendment’s safeguarding of free speech.
Despite the disappointment among free speech advocates over the lifting of the ban, free speech advocates welcomed the news of the Supreme Court agreeing to hear the case. Senator Eric Schmitt, who filed the original lawsuit in 2022 when he served as Missouri’s attorney general, hailed the Supreme Court’s decision as one of the most important free speech cases in a generation.
On the X platform, Schmitt posted:
“[T]he United States Supreme Court has granted cert in Missouri v. Biden — the nation’s highest court will hear the most important free speech case in American history. I’m proud to have filed this case when I was AG, and will always defend free speech.”
🚨 BREAKING: The United States Supreme Court has granted cert in Missouri v. Biden — the nation's highest court will hear the most important free speech case in American history.
I'm proud to have filed this case when I was AG, and will always defend free speech. pic.twitter.com/2MOfLXH8u0
— Eric Schmitt (@Eric_Schmitt) October 20, 2023
In March, 2023, Eric Schmitt laid out his case in an interview on Fox Business’ Varney & Co.