Kerby Anderson

Perhaps the most disappointing Supreme Court ruling this last session dealt with the real concern about social media censorship. The justices chose not to decide the case supposedly because the plaintiffs lacked standing. Justice Amy Coney Barrett wrote: “We begin—and end—with standing…. We therefore lack jurisdiction to reach the merits of the dispute.”

The other argument dealt with the issue of “traceability.” Although numerous federal agencies did attempt to censor social media posts and people, Big Tech didn’t always take their advice. Justice Barrett argues that the platforms “had independent incentives to moderate content.” That is a poor argument. As one commentator put it, the government couldn’t be held responsible “because the platforms only followed through with government flags or requests at a roughly 50% clip.”

In his dissent, Justice Samuel Alito did acknowledge that “what the officials did in this case was more subtle than the ham-handed censorship found” in another case the High Court decided. In fact, he argued, “because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.”

This is a disappointing ruling especially since we have the revelations from the “Twitter files” that show emails and subsequent decisions by Twitter and Facebook to censor content. Also, the House Weaponization Subcommittee has released reports showing federal agencies working with nonprofits to coerce Big Tech into curtailing certain forms of speech.

There will be other Supreme Court cases concerning social media censorship, but this was a missed opportunity.