Majority of Court rejects Sam Alito/Ken Paxton/Matt Taibbi argument that the 1st Amendment forbids executive branch officials from saying things they disagree with

In one of its “in a sane world this case would have been disposed of well before the nation’s highest court had to get involved” cases, the Court rejected the idea that executive branch officials communicating (and nothing more) with social media companies about promoting misinformation on social media violates the First Amendment on standing grounds. Alito’s Pajamas Media column had several unintentionally hilarious passages, with this being the most telling:

The highly “subtle” and “sophisticated” means of “coercion” state officials used was…to make suggestions with no coercion at all, that companies were free to ignore and many did. And without this element, the First Amendment arguments are absurd, because social media companies are not obligated to platform any view and executive branch officials are allowed to express opinions:

As Barrett’s majority opinion lays out, this lawsuit never should have been filed in the first place, and no federal court should have entertained it. Her opinion holds that the Murthy plaintiffs, who raised vague allegations that the government tried to censor them, could not even show that the government did anything to harm them in the first place.

Murthy involves a wide range of communications among the White House, various federal agencies, and major social media platforms like Facebook and X (the website formerly known as Twitter). Some of these communications urged platforms to remove content, such as speech seeking to recruit terrorists, to spread election disinformation, or to promote false and potentially harmful medical advice — including false claims about Covid-19 and vaccines.

The plaintiffs in Murthy are two red states plus an array of individuals who had content removed or suppressed by at least one of the social media platforms. They claimed that platforms censored them because of pressure from the government, and that this pressure violates the First Amendment.

That is a highly dubious claim. While the First Amendment forbids the government from coercing media outlets into removing content, nothing prevents the government from asking a platform to do so. Indeed, at oral arguments in Murthy, both Justices Elena Kagan and Kavanaugh recounted times when, during their service as White House officials, they pressured journalists to remove or correct editorials or other content that contained factual errors.

Nevertheless, the far-right US Court of Appeals for the Fifth Circuit did not simply embrace this claim, it issued a vague and sweeping injunction forbidding the Biden administration from having “consistent and consequential” communications with social media companies — whatever that means. As a practical matter, this difficult-to-parse injunction made it virtually impossible for the administration to have any communications whatsoever with the platforms.

But the Supreme Court held that the Fifth Circuit was wrong to even consider these plaintiffs’ dubious First Amendment arguments, ruling that federal courts lack jurisdiction over this case.

Feels like it’s time for another round of the TWITTER FILES! I hear nothingburger is on the menu.

Still, 5CA is an immensely useful too for Republicans — some of its incredibly nutty holdings will become law, others allow defenders of family separation to portray the Court as “moderate” by occasionally insisting on a modicum of law from the lower stations of the Republican executive council.