US Supreme Court lifts ban on contacting social media companies

According to an injunction that was due to be issued in 2023, several US federal officials were not allowed to have contact with the social network operators. The US Supreme Court overturned this ban on Wednesday by a vote of six to three judges. The reason: the plaintiffs were not entitled to file their suit (“no standing”). This should make the main proceedings unnecessary.

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The cause of action was calls and suggestions by various US federal authorities to operators of social networks to curb misinformation and disinformation on their platforms. The plaintiffs were five individuals and the Republican states of Missouri and Louisiana, who claim to represent the interests of their citizens. They were upset by the fact that federal agencies such as the FBI and the CDC, which are responsible for disease control, have encouraged measures against lies about election results or vaccines, including deleting posts or at least not distributing them widely. Such suggestions are an encroachment of authority, a violation of various rules on the performance of administrative functions, and a violation of the First Amendment of the US Constitution. The latter enshrines the right to freedom of expression.

With these arguments, the plaintiffs obtained a federal preliminary injunction in the US District Court for Western Louisiana in July 2023. The lawsuit was directed against a number of officials and officers, from US President Joe Biden on down; the judge then banned only selected US officials from contacting “social media companies”.

The US government fought against the injunction, but only obtained a stay on the injunction from the federal Court of Appeals for the Fifth Circuit. This court was once known for groundbreaking civil rights decisions, but now has a reputation for being exclusively Republican in ideology. The Supreme Court, which is itself Republican-dominated, has recently overturned an unusually large number of decisions from the Fifth Circuit, including another on Wednesday.

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The Court of Appeals was wrong

Contrary to the Fifth Circuit’s decision, the plaintiffs are not entitled to sue because they could not demonstrate that official pressure on social network operators had adversely affected them. First, the operators made their censorship decisions based on rules they set, not official pressure. Accordingly, an injunction against officials cannot change the social network’s rules.

Even documents submitted by the plaintiffs showed that operators were cracking down on COVID-19 disinformation even before most of the objectionable interactions with government officials began. These rules remain in effect today, although federal officials have halted their efforts.

This also means that the second requirement for an interim injunction, which can only be directed against future injustice, is eliminated: at least one plaintiff must show that he or she is at a substantial risk of being affected by censorship in the near future. At least one social network must react to a measure taken by at least one defendant. No plaintiff has succeeded in doing this.

No general right to be heard

In addition, the Supreme Court rejected an argument that could have expanded the right to sue: the plaintiffs claimed a “right to be heard.” Removing online postings would restrict your right to know about the removed content. In fact, according to previous case law (Kleindienst v. Mandel), the right to receive information only exists if there is a concrete, specified relationship between the recipient and the sender. The plaintiffs did not provide a single example of how their ability to receive communications was specifically impaired. Without concrete damage, they cannot go to court.

Missouri and Louisiana claimed the right to have their citizens heard. But they also gave no examples of issues or citizens they had not heard about. And according to a finding last year, US states do not have the legitimacy to sue federal officials on behalf of their citizens without prejudice.

The Supreme Court overturned the appeal decision of the Federal Court of Appeal. Following the Supreme Court’s instructions, the court will now have to decide again on the appeal against the preliminary injunction of the first instance. Unless the appeal court comes up with fundamentally new principles for the legal validity of the plaintiff, it will have to stop this process.

The procedure is first called Missouri et al v. Biden et al. It was docketed in the U.S. District Court for Western Louisiana under case number 3:22-cv-1213, and in the federal Court of Appeals for the Fifth Circuit under case number 23-30445. The Supreme Court has the name Murtha v. MissouriReference 23-411.

(DS)