Opinion | This Supreme Court’s ruling produced an interesting 3-3 conservative split

The case arose from Biden administration officials having constant meetings and communications with the internet platforms. The officials peppered them with suggestions — or requests, or pressure, or demands — that certain posts, mostly concerning pandemic-related policies and claims of 2020 election fraud, be expunged. How the administration’s various approaches to the platforms are characterized — particularly, were they coercive? — matters.

The U.S. Court of Appeals for the 5th Circuit largely affirmed a district court’s broad injunction against federal government communications with the platforms. The administration’s word choices (President Biden said the platforms were “killing people”), its tone, including intimations of adverse consequences of noncompliance (the platforms benefit from statutory protections), constituted, the 5th Circuit said, censorship.

The majority disagreed, in an opinion written by Justice Amy Coney Barrett. She was joined by two other conservatives, John G. Roberts Jr. and Brett M. Kavanaugh, and by the three liberal justices: Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson.

Barrett said the plaintiffs — two states and five social media users — lacked standing to sue because they failed to demonstrate “any concrete link” between Biden administration’s communications with the platforms and injuries the plaintiffs said they suffered from the platforms. And she says the court should not minutely monitor years of communications from “dozens” of officials and various agencies with various platforms about various topics.

Her meticulous argument reflects a conservative principle of judicial restraint: It is inappropriate for courts to undertake close supervision of the other branches. The plaintiffs, Barrett said, failed to demonstrate that a particular government pressure on a particular platform suppressed a particular plaintiff’s speech.

Samuel A. Alito Jr., joined in dissent by the other conservatives, Clarence Thomas and Neil M. Gorsuch, illustrates the conservative principle that judicial restraint can constitute a dereliction of the duty of “judicial engagement” against the other branches’ actions that violate constitutional rights. Alito assembles powerful evidence that the government so “hectored” Facebook that it “whimpered” apologetically, like “a subservient entity” determined to act “collaboratively” with “a powerful taskmaster.”

This case, like many others, required the court to balance conflicting powers and rights. The federal government has the power to speak about various matters of public policy. But state governments have the power to speak to their constituents without encountering federally imposed social media impediments. And although private social media companies’ content-moderation decisions are not constrained by the First Amendment, individuals have a First Amendment right not to have their ability to speak on the platforms abridged by government’s “encouragement” of censorious behavior — government coercion or collusion that makes the platforms, in effect, government appendages.

It is difficult to draw lines, lines neither vague nor overbroad, between permissible and unconstitutional government involvements with social media. But drawing lines, including those defining free speech on the internet, is the justices’ job.

This case came to the court in the context of progressives’ insistence that the First Amendment is too protective of “harmful” speech, with “harm” defined broadly to encompass listeners’ distress, or society being confused. The three dissenters’ anxiety about government misbehavior is understandable. They might, however, have another chance to be in the majority.

“We begin — and end — with standing,” wrote Barrett for the majority. “At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant” (emphasis added). There probably will be other stages.

The government constantly communicates with social media platforms to influence content-moderation decisions that it considers important to national security, public health, election integrity and a malleable menu of other matters. So, the issues in this case probably will be revisited in subsequent cases, for two different reasons:

First, Wednesday’s decision turned on a technical assessment of whether the plaintiffs had standing to sue. Second, government’s desire to influence internet discourse will intensify.

The government has been increasingly policing “misinformation,” “disinformation” and “untrustworthy content”: Biden’s press secretary said the platforms could face legal consequences, including antitrust enforcement, unless they stopped “amplifying” such things. Such attempts to regulate internet speech will wax until social media influence wanes.

But their influence is waxing, and government interactions with them probably will generate new justiciable controversies. So, the Alito-Thomas-Gorsuch position may yet become that of the conservative “bloc,” and hence of the court.