SCOTUS Rules That US Government Can Continue Talking to Social Media Companies(wired.com)
wired.com
SCOTUS Rules That US Government Can Continue Talking to Social Media Companies
https://www.wired.com/story/scotus-us-government-talk-social-media-companies/
48 comments
> SCOTUS didn't rule anything of the sort; they didn't get to the merits of the case. They dismissed the claim for lack of standing:
Except that the lack of standing kind of necessarily implies the lack of merits. The allegations in the case where that the government improperly influenced the social media companies to suppress speech; the plaintiffs failed to demonstrate that their speech was suppressed as a result of this improper influence, and by doing so, they failed to reach standing. But if their speech wasn't suppressed by government influence, then there's no influence to be improper in the first place!
If you actually go through the decision and read it through, including the footnotes, it's clear that the court is pretty skeptical of the actual merits as well. Only one of the plaintiffs was able to come close to showing government influence in their censorship, but that argument is pretty weak given that they were repeatedly censored before they alleged the government influence began!
Except that the lack of standing kind of necessarily implies the lack of merits. The allegations in the case where that the government improperly influenced the social media companies to suppress speech; the plaintiffs failed to demonstrate that their speech was suppressed as a result of this improper influence, and by doing so, they failed to reach standing. But if their speech wasn't suppressed by government influence, then there's no influence to be improper in the first place!
If you actually go through the decision and read it through, including the footnotes, it's clear that the court is pretty skeptical of the actual merits as well. Only one of the plaintiffs was able to come close to showing government influence in their censorship, but that argument is pretty weak given that they were repeatedly censored before they alleged the government influence began!
> the plaintiffs failed to demonstrate that their speech was suppressed as a result of this improper influence
This isn't quite right and illustrates the subtleties involved in understanding these kinds of rulings.
When evaluating standing, courts don't determine whether any claims made are true or not. They simply evaluate whether a cognizable claim is made that, if true, would constitute a redressable injury that is traceable to actions of the defendants. According to the Court, the plaintiffs didn't make any such claims, and that's why the case was dismissed for lack of standing.
(Edited to remove a specific reference to the state plaintiffs.)
This isn't quite right and illustrates the subtleties involved in understanding these kinds of rulings.
When evaluating standing, courts don't determine whether any claims made are true or not. They simply evaluate whether a cognizable claim is made that, if true, would constitute a redressable injury that is traceable to actions of the defendants. According to the Court, the plaintiffs didn't make any such claims, and that's why the case was dismissed for lack of standing.
(Edited to remove a specific reference to the state plaintiffs.)
There's two sets of plaintiffs in the suit, the state plaintiffs and the private plaintiffs.
The state plaintiffs alleged standing on the basis that they have an interest in making sure their citizens have a "right to listen", and this was yeeted almost perfunctorily (it's like two pages of the decision). The states' lack of standing is not the major holding of this decision.
The private plaintiffs alleged standing on the basis that they were censored by the platforms as a result of the government's encouragement, and they were yeeted specifically because they failed to demonstrate any traceability of their censorship from the government's action.
Yes, I read the ~38 page majority opinion. (I gave up on the dissent as not being worth my time).
The state plaintiffs alleged standing on the basis that they have an interest in making sure their citizens have a "right to listen", and this was yeeted almost perfunctorily (it's like two pages of the decision). The states' lack of standing is not the major holding of this decision.
The private plaintiffs alleged standing on the basis that they were censored by the platforms as a result of the government's encouragement, and they were yeeted specifically because they failed to demonstrate any traceability of their censorship from the government's action.
Yes, I read the ~38 page majority opinion. (I gave up on the dissent as not being worth my time).
This dissent was one of the worst I've read in some time. While I disagree strongly with Justices Thomas, Alito, and Gorsuch most of the time, they are unquestionably very capable legal thinkers and writers. So I'm surprised just how terrible this dissent is. (Maybe it's an Alito thing.) Most of it is highly political and barely any of it is hard legal analysis. Even the standing argument they make leans heavily on a single individual plaintiff (Dr. Hines) and they don't even try to defend the standing of the states or other individuals. I have a feeling this dissent was published mainly for show, not because they actually have a defensible minority legal opinion. It's risk-free for them since it has no precedential value.
I'm actually kind of shocked that three members of our highest court wouldn't join the majority in dope-slapping the Fifth Circuit (if not in the body, at least in a footnote) for such shoddy work product. That circuit is packed with morons hand-picked from the Heritage Foundation who arguably have no business practicing law in the first place.
I'm actually kind of shocked that three members of our highest court wouldn't join the majority in dope-slapping the Fifth Circuit (if not in the body, at least in a footnote) for such shoddy work product. That circuit is packed with morons hand-picked from the Heritage Foundation who arguably have no business practicing law in the first place.
[deleted]
Except they did. This ruling removes the injection prohibiting the USG from talking to social media companies.
This detail is in the article.
https://en.wikipedia.org/wiki/Murthy_v._Missouri
This detail is in the article.
https://en.wikipedia.org/wiki/Murthy_v._Missouri
It's not a "ruling", it's a "refusal to hear the case", which effectively removes the injunction. They made no comment on the legality of the administration's actions.
Edit: jfc, lol @ the debate around whether or not to call it a "ruling". The government can continue to talk to social media companies for now regardless of whatever the hell you call it. I regret contributing to this lol.
Edit: jfc, lol @ the debate around whether or not to call it a "ruling". The government can continue to talk to social media companies for now regardless of whatever the hell you call it. I regret contributing to this lol.
> 83 F. 4th 350, reversed and remanded.
Is a ruling. It reverses the decision in "83 F. 4th 350" also known as Murthy v Missouri [1].
[1]: https://casetext.com/case/murthy-v-missouri-3
Is a ruling. It reverses the decision in "83 F. 4th 350" also known as Murthy v Missouri [1].
[1]: https://casetext.com/case/murthy-v-missouri-3
It indeed is a ruling, but it's not a ruling that "US Government Can Continue Talking to Social Media Companies." It's a ruling that this specific case cannot be heard as presented.
It’s a ruling against the injunction, not a ruling on the merits of the case.
And the injunction prohibited the USG from talking to Social Medial Companies.
This ruling removes the injunction,
Therefore, SCOTUS rules that USG can talk to Social Media Companies.
This ruling removes the injunction,
Therefore, SCOTUS rules that USG can talk to Social Media Companies.
That's not how lawyers think about this, and since this is a legal case, if they don't, neither should the rest of us.
We're talking about the headline of a news article. The standard shouldn't be what would a lawyer claim.
I would claim a lay-person would say that removing a limitation from doing X could be stated as allowing X.
I would claim a lay-person would say that removing a limitation from doing X could be stated as allowing X.
The WSJ's headline is much better and not misleading: "Supreme Court Rejects GOP-Led Suit Claiming Government Censored Social Media".
And it propagates all the way back down the stack (so to speak), meaning, the lower courts have to also refuse to hear the case. It doesn't mean they can't hear future cases where standing is clearly established.
It removes the injunction because they determined there wasn't standing, not because they affirmed the Executive's actions as legal. Those are two different things.
There could be no clearer standing than this case, consisting of several users who had their opinions censored and attorneys general representing the rights of the people. If neither group has standing, who does?
This was a base act of legal buffoonery. It is transparently bullshit.
This was a base act of legal buffoonery. It is transparently bullshit.
The lack of standing comes from the failure of the plaintiffs to mention specific actions.
You can't just be like "FaceBook censored me because of the FBI". You have to actually make a claim like "My post from July 5th was removed by FaceBook because of an email written to FaceBook from the FBI on July 6th". Preferably with both the email and post as exhibits.
You can't just be like "FaceBook censored me because of the FBI". You have to actually make a claim like "My post from July 5th was removed by FaceBook because of an email written to FaceBook from the FBI on July 6th". Preferably with both the email and post as exhibits.
Well, that's not quite true. You can claim that you have been dissuaded from exercising your First Amendment rights[1] in the future (for example, that you're afraid of publishing new material under threat of punishment). That's called a "chilling effect." The problem in this case is that no plaintiff could do even that and draw a plausible and clear causal connection between their fear and the actions of the Government.
[1] The question of whether someone has a First Amendment right to make a social media post has not yet been clearly established, and the Court didn't get to this question in this case.
[1] The question of whether someone has a First Amendment right to make a social media post has not yet been clearly established, and the Court didn't get to this question in this case.
That allows the government to censor at will by censoring on the policy level, by making Facebook adopt government-demanded policies. Since it is always possible that Facebook could have come up with the same policy anyway by coincidence, it's never possible to trace any specific act to the government censorship.
Of course it’s possible. That’s what discovery is for. Internal emails were cited in this case as well.
And if the Government had coerced Facebook in violation of its Constitutional rights, I’m sure Facebook would sue the Government and quite possibly prevail.
And if the Government had coerced Facebook in violation of its Constitutional rights, I’m sure Facebook would sue the Government and quite possibly prevail.
Precisely. What some people want is for some judicial process to interpose itself in collusion between a private company and the government against the interests of individual clients of a private company... That if the Executive says "jump" and a private company says "how high?" in violation of no particular statute, the judiciary would stop them for First Amendment reasons.
It won't, because the companies don't own a private citizen's First Amendment right.
It won't, because the companies don't own a private citizen's First Amendment right.
Facebook or Twitter would have had standing, if they claimed injury due to perceived Government threats in reaction to their speech.
Did you read the whole opinion? It's pretty coherent, and makes sense if you've ever taken a civil procedure course.
Did you read the whole opinion? It's pretty coherent, and makes sense if you've ever taken a civil procedure course.
The headline is accurate, in that a Supreme Court ruling removed a constraint that was put in place by a lower court.
That fact that the basis of the ruling was standing does not change its practical effect. And that is what news readers are primarily interested in.
That fact that the basis of the ruling was standing does not change its practical effect. And that is what news readers are primarily interested in.
The article is from WIRED, not WSJ. (I often disagree with WSJ but at least their hard news headlines are less misleading.)
I just mistyped, now edited to be more general.
Standing is just an excuse to punt. Lack of standing did not stop them in 303 Creative v Elenis, nor did it stop them in Biden v Nebraska.
In 303 Creative, standing is discussed in Part I(B).
In Biden v. Nebraska, standing is exhaustively discussed in Part II.
In Biden v. Nebraska, standing is exhaustively discussed in Part II.
303 Creative was not prosecuted under Colorado's law. They were not even asked to create a wedding website for a gay couple: https://newrepublic.com/article/173987/mysterious-case-fake-...
In fact, there is no evidence they had ever built a wedding website: https://slate.com/news-and-politics/2023/06/real-story-behin...
So, we have someone who has never suffered a harm from the law, was under no risk of prosecution, and who had never even had the opportunity to violate the law. If this person has standing, then standing is meaningless.
The fact that there's a blurb about it in a decision is irrelevant, does the court have a consistent philosophy on standing, or are they just winging it? It seems really obvious they're winging it.
In fact, there is no evidence they had ever built a wedding website: https://slate.com/news-and-politics/2023/06/real-story-behin...
So, we have someone who has never suffered a harm from the law, was under no risk of prosecution, and who had never even had the opportunity to violate the law. If this person has standing, then standing is meaningless.
The fact that there's a blurb about it in a decision is irrelevant, does the court have a consistent philosophy on standing, or are they just winging it? It seems really obvious they're winging it.
The fact that they analyzed standing is very relevant from a legal and precedential standpoint. I’d like to see your legal analysis to see if you could do better.
If their analysis is inconsistent and arbitrary then it’s worse than useless, it’s harmful.
It’s not hard to do better. The legal analysis of “I’m just doing what I want based on vibes” would be better, because at least it would be honest!
It’s not hard to do better. The legal analysis of “I’m just doing what I want based on vibes” would be better, because at least it would be honest!
[deleted]
As another commenter noted, they did no such thing. They ruled that the plaintiffs have no standing to challenge the practice.
But how weird would it be if there was an industry segment the federal government was not allowed to talk to? The whole complaint seems like a thinly veiled attempt to say the federal government is not actually a government.
But how weird would it be if there was an industry segment the federal government was not allowed to talk to? The whole complaint seems like a thinly veiled attempt to say the federal government is not actually a government.
basically saying the federal govt. shouldn't have an ability to communicate...
The complaint was about communication that coincides with implied threats or intimidation. The social media companies take down the alleged misinformation not because they want to, but “because of the implication” of what would happen if they did not.
For example, the executive branch might promote some legislation that would be damaging to social media companies, and at the same time, send them requests to take down some posts. The social media companies comply because they want to be in the good graces of the White House while negotiating on the legislation.
This is called “jawboning:” https://www.lawfaremedia.org/article/informal-government-coe...
For example, the executive branch might promote some legislation that would be damaging to social media companies, and at the same time, send them requests to take down some posts. The social media companies comply because they want to be in the good graces of the White House while negotiating on the legislation.
This is called “jawboning:” https://www.lawfaremedia.org/article/informal-government-coe...
Everything you say is true, except that is not what the complaint was about. In fact, in rejecting standing, the Supreme Court notes:
> Complicating the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than its own judgment, is the fact that the platforms began to suppress the plain- tiffs’ COVID–19 content before the defendants’ challenged communi- cations started.
How can it be jawboning when the contact comes after a decision was already made? If even the plaintiffs aren’t alleging impropriety that follows normal causality, all that’s left is that NO contact can be legal.
> Complicating the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than its own judgment, is the fact that the platforms began to suppress the plain- tiffs’ COVID–19 content before the defendants’ challenged communi- cations started.
How can it be jawboning when the contact comes after a decision was already made? If even the plaintiffs aren’t alleging impropriety that follows normal causality, all that’s left is that NO contact can be legal.
So is the issue that Twitter (X) would have to sue?
I think that if Facebook et al. sued, standing would be clearly established, and the case would have proceeded very differently. Of course, they didn't. So some southern states decided they would try to intervene (while finding a few individuals to join to try to bolster their case), and ultimately failed.
Honestly, that article is starting to make it sounds pretty legal.
In a hypothetical scenario where the USG tells Twitter to take down X post or we'll pass a future law. Whats the difference between that scenario and a City telling a Bank to remove a billboard or we'll re-zone you?
> In another case, the U.S. Court of Appeals for the Third Circuit rejected claims that a city violated a billboard owner’s First Amendment rights when it “politely but firmly suggested” that the bank that owned the plot of land on which the billboard stood “remove the unsightly billboards” and noted the possibility that, if the bank did not prove “interested in being responsive to this community[,]” the city might be forced to resort to costlier “legal procedures.” Because the city’s letters to the bank contained no “enforceable threats,” and the only sanctions the city could bring to bear against the bank were “civil or administrative proceedings under a zoning ordinance not yet drafted[,]” the Third Circuit held that the decision to terminate the billboard owner’s lease was private action beyond the scope of the First Amendment and that this was true even though the bank admitted that it removed the billboard in order to maintain its good relations with the city.
In a hypothetical scenario where the USG tells Twitter to take down X post or we'll pass a future law. Whats the difference between that scenario and a City telling a Bank to remove a billboard or we'll re-zone you?
> In another case, the U.S. Court of Appeals for the Third Circuit rejected claims that a city violated a billboard owner’s First Amendment rights when it “politely but firmly suggested” that the bank that owned the plot of land on which the billboard stood “remove the unsightly billboards” and noted the possibility that, if the bank did not prove “interested in being responsive to this community[,]” the city might be forced to resort to costlier “legal procedures.” Because the city’s letters to the bank contained no “enforceable threats,” and the only sanctions the city could bring to bear against the bank were “civil or administrative proceedings under a zoning ordinance not yet drafted[,]” the Third Circuit held that the decision to terminate the billboard owner’s lease was private action beyond the scope of the First Amendment and that this was true even though the bank admitted that it removed the billboard in order to maintain its good relations with the city.
> The whole complaint seems like a thinly veiled attempt to say the federal government is not actually a government.
Except with hard power! You can govern with hard power, but you can't talk to anyone.
It feels to me like a very thinly veiled attempt to sow distrust. To support a pre-constructed narrative that the government is out to get people. Feeling like the victim of government draws in a lot of votes, is one of the lowest common radicalizers available.
People are desperate to believe the US government is out there suppressing voices. There's a whole constructed reality that this is prevalent, happening en masse. There's just, like, hardly any evidence at all. Also weird as hell many of these same political factions blame Section 230, when it's expressly a shield allowing companies to host anything online without being in trouble, a defense against The Wolves of Wall Street bad guys Stratton Oakmont suppressing Prodigy.
It is inordinately hard for me to read any good faith in the outrage machine powering this all. There's a totally decoupled world of spin feeding this agenda, that seemingly doesn't need any connection to the real world to sustain & grow it's angst. And with remedies like "eliminate section 230" it's terrifying to imagine what all might be wrought by this persecution-delusion.
Except with hard power! You can govern with hard power, but you can't talk to anyone.
It feels to me like a very thinly veiled attempt to sow distrust. To support a pre-constructed narrative that the government is out to get people. Feeling like the victim of government draws in a lot of votes, is one of the lowest common radicalizers available.
People are desperate to believe the US government is out there suppressing voices. There's a whole constructed reality that this is prevalent, happening en masse. There's just, like, hardly any evidence at all. Also weird as hell many of these same political factions blame Section 230, when it's expressly a shield allowing companies to host anything online without being in trouble, a defense against The Wolves of Wall Street bad guys Stratton Oakmont suppressing Prodigy.
It is inordinately hard for me to read any good faith in the outrage machine powering this all. There's a totally decoupled world of spin feeding this agenda, that seemingly doesn't need any connection to the real world to sustain & grow it's angst. And with remedies like "eliminate section 230" it's terrifying to imagine what all might be wrought by this persecution-delusion.
So it continues to be the case that the most effective avenue to get one's message out is to host one's own message.
It's good to know the Fediverse at large (and Mastodon in particular) make this easier than ever. Perhaps this entire concern can be made moot by further adoption of decentralized technologies.
It's good to know the Fediverse at large (and Mastodon in particular) make this easier than ever. Perhaps this entire concern can be made moot by further adoption of decentralized technologies.
I just run my own website. It’s the original decentralized web. If I need to, I can share links on social media but I always own the content.
This is consistent with the design and spirit of the Internet, and in my opinion is how it should be.
Imo the best way to get your message out is to have a better message
SCOTUS didn't rule anything of the sort; they didn't get to the merits of the case. They dismissed the claim for lack of standing:
"We begin--and end--with standing. At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute."