The last week of the Supreme Court term was an utter disaster for anybody believing in the rule of law.  I will get to the worst of the worst over the next week, but I am going to start with the cases that merely had ambiguous result.

The Supreme Court had two cases involving how the First Amendment applies to social media companies.  The first, Murthy vs. Missouri, involved whether governmental “jawboning” of social media companies to more closely control the content posted on their websites was improper coercion infringing on the First Amendment rights of users of those websites.  The second, Moody vs. NetChoice (and the companion case, NetChoice vs. Paxton — yes, that Paxton) involves the state laws of Florida and Texas that seek to regulate the ability of social media websites to edit their own content.

Starting with Murthy, this case was brought in the Western District of Louisiana.  While it was brought in a division that had multiple judges, they were all appointed by President Trump.  In other words, it was guaranteed to have a judge who was sympathetic to plaintiffs’ complaints.  The plaintiffs were a mix of private conspiracy theorists and the Republican Attorney Generals of Louisiana and Missouri.  The gist of their complaints was that various social media websites had removed or downgraded certain posts submitted by these individuals under those companies’ policies governing the content of posts.  These posts included misinformation about topics like COVID and the elections.  At the same time, certain officials in the federal government were reaching out to these companies to encourage them to take a more vigorous editorial control over the content of their websites to block such information.  Plaintiffs alleged that, even though these officials had no regulatory authority over these websites, just the fact that the federal government was raising these issues with these companies was coercive and that the various websites took adverse actions with regards to the individuals posts.

The plaintiffs in this case sought to have an injunction barring the federal government from raising these concerns with the websites.  And, having filed the case in a favorable district, the plaintiffs got pretty much everything that they asked for — a very broad injunction covering most of the government and most communications between the government and these companies.  This injunction was so overbroad that the Fifth Circuit (not known for its restraint in doing the bidding of the far right) opted to narrow those restrictions, but the Fifth Circuit still kept the core of the injunction intact including banning the lead defendant (the Surgeon General) from contacting these companies to express concerns about health misinformation posted on their websites.   Both the district court and the Fifth Circuit found that the communications crossed the line into coercion.

In an opinion written by Justice Barrett, the Supreme Court found that the Fifth Circuit had misapplied the law on one of the basic rules governing federal cases — standing.  Standing is the requirement that a plaintiff show that they were harmed by the defendant’s (or defendants’) actions.  Here, prior to any communications from the government officials, the websites had their own rules governing posts on those websites and processes for removing (or deemphasizing) posts that violated those rules.  And because the government officials are the defendants (not the websites), standing requires the plaintiffs to demonstrate that the harm (the removal of their posts) was the result of the actions of the government officials.  As the majority explains, the fact that the government officials did not have the final say over what would happen with the plaintiffs’ post make it harder to establish standing.  Further, because plaintiffs are seeking an injunction, past conduct is only relevant to the extent that it makes plaintiffs’s fear of future misconduct substantial.  In the eyes of the majority, both lower court decisions failed to closely examine plaintiffs’ evidence to see if there was a connection between the actions of the government and the actions of the websites.  The mere fact that websites took adverse action at the same time that the government was raising these issues does not automatically mean that the websites’ decisions were influenced by the government.  As the majority noted, these websites had rules governing the removal of inappropriate content (including making revisions to those policies) long before any of the allegedly coercive conduct by the government officials, and there was no proof that there were any changes to those policies in response to the input by government officials.  In other words, the most that plaintiffs showed was that the government officials brought some inappropriate content to the attention of those in the companies responsible for monitoring such content.  Given the failure to demonstrate a sufficient linkage between the past conduct of defendants and the actions of the websites, plaintiffs failed to show any likely future harm (as required for an injunction) from the defendants’ actions.

Justice Alito, joined by Justice Thomas and Justice Gorsuch, wrote a dissent which is best described as hyperbole which ignores history.  Even though, for decades, every major government office of any substantial side has had spokespersons who spend a significant amount of time lobbying for favorable coverage in the media, these efforts of the government to control the narrative is allegedly a major threat to the First Amendment.  Because Justice Thomas and Justice Alito are two of the nine votes on the Supreme Court, the fact that they have shown that their opinions are result-driven unconnected to any traditional legal principles does not reduce their ability to cause damage to the future of the country.

For the majority, it is unclear what to tell by the fact that the majority bases its decision on standing instead of the merits.  In theory, standing should take priority over the merits.  But, it is not unusual for the Supreme Corut to ignore questionable standing to resolve the merits.  On the merits, this case is a no brainer, and this case should have been used (in combination with the earlier decision in the NRA case where regulators allegedly made a clear threat to regulated entities) to draw a clear line between politicians trying to get the media to adopt their narrative and coercive conduct.  Whether this opinion simply reflects that the mainstream conservatives generally take a strong First Amendment stance and thus did not want to issue an opinion that would support the conduct of the government officials when they could resolve it on other grounds is unclear.

The NetChoice case involves two statutes — one in Texas and one in Florida — that are part of the conservative narrative that Facebook (and YouTube) are censoring conservative voices.  As described in the opinion, these cases involve a facial challenge to the statute.  There are two types of challenges recognized by law.  The first is an “as applied” challenge.  An “as applied challenge” focuses on one or two of the aspects of the law as it impacts a particular plaintiff.  In essence, an as applied challenge is that this law prohibits me from doing X and I have a constitutional right to do X.  The other type is a facial challenge.  A facial challenge, in most cases, is that all of the applications of this statute are unconstitutional.  The law is a little more forgiving in First Amendment cases in which the challenger merely needs to demonstrate that enough applications are unconstitutional that the unconstitutional aspects of the law outweigh any constitutional applications.

In this case, both statutes regulate what social media websites can do in terms of  banning, removing, and downgrading items posted on the websites.  In addition, the laws require social media websites to justify to users whose posts are impacted why it made the decisions that it made.  As described by the majority opinion, the hearings in the trial court and lower court opinions focused on how Facebook and YouTube currently handle things and how these statutes may or may not be unconstitutional as applied to certain types of posts on those sites.

The majority opinion. written by Justice Kagan, vacates the two lower court opinions.  Essentially, it gives both the Fifth (which upheld the Texas law) and the Eleventh Circuit (which struck down the Florida law) a grade of incomplete.  As explained by the majority, both courts erred (understandably given the way that the case presented) on how these laws impacted certain things that certain websites do.  But, given that the reach of these laws is broader and potentially covers other things that websites might want to do, a facial challenge requires looking at all of these things and weighing any valid restrictions against invalid restrictions.  As such, the lower courts need to consider how these laws might impact other decisions by social media websites.  While all nine justices agreed with the ultimate decision (to send the case back to the lower courts), there was a 5-1-1-2 split.

Beyond the incomplete grade, however, the Supreme Court looked at what the lower courts did decide.  Generally speaking, the Supreme Court found that the limited analysis by the Eleventh Circuit was correct and that the analysis by the Fifth Circuit was completely wrong.  The companies that own social media websites are private companies and not the government.  As such, they get to decide what their websites are going to be.    The majority opinion goes through multiple cases in which organizations (cable TV companies, newspapers, parades) had been found to have the First Amendment right to exclude content even though they allowed some content provided by others.  As such, contrary to the holding of the Fifth Circuit, the majority found that these companies have the First Amendment right to decide that certain content is not compatible with the product that they wish to offer, and that users and government does not have the right to force these companies to accept content that these companies feel is incompatible with the visions for their product.  Justice Barrett fully joins the majority opinion but writes separately to emphasize the difficulties that the social media companies face due to having raised a facial challenge while briefly noting that the Fifth Circuit was completely wrong in their analysis of the case and the Eleventh Circuit was correct in the parts of the case that it analyzed.    Justice Jackson only partially joined the majority opinion.  While she joined the part finding that these websites have First Amendment rights, she did not join the part that went on and analyzed the application of the appropriate test to the uses analyzed by the lower court.  Justice Jackson believes that, having set out the test, the majority opinion should have let the lower courts apply the test to the facts.  Justice Thomas does not join the majority opinion.  He contends that the trade association (the lead plaintiff) has standing issues and that the lower courts should also consider some the of the cases regarding regulations of common carriers in assessing the validity of these statutes.   He also joins Justice Alito’s opinion.  Justice Alito (joined by Justice Thomas and Justice Gorsuch) complains about the majority doing any analysis of the merits of the case and disagrees with the finding that the Fifth Circuit was wrong.   It is hard to square Justice Alito’s opinion in this case that it is okay to regulate social media websites in this way with his previous opinion that it is not okay for Colorado to prohibit florists, bakers, and website developers from discriminating against same-sex couples.

It is hard to look at these cases, and the other term end cases and avoid the conclusion that, despite the claims from the conservative movement that textualism and originalism will take political agendas out of the judicial process, at least some conservative justices are just as activist and results-oriented as the former liberal justices that the conservative community condemned for rewriting the law to satisfy a political agenda.  If the Supreme Court is just another political body, there is no reason why Democrats should not go back to basing the size of the Supreme Court on the number of circuits of the Court of Appeals (currently thirteen, with four new circuits created after the Supreme Corut went to nine justices).