Justice Alito Dissent Says Majority ‘Shirks’ Duty in Free Speech Case

The country ’may come to regret‘ the high court’s failure to call out ’blatantly unconstitutional’ acts, Justice Alito said.

Supreme Court Justice Samuel Alito said the high court shirked its duty by rejecting a challenge brought over the White House’s communications with social media companies over political content, a case he described as “one of the most important free speech cases to reach this Court in years.”

Justices Alito, Neil Gorsuch, and Clarence Thomas dissented from the majority in the June 26 decision that the state and individual plaintiffs involved lacked standing to bring speech-related claims to the court.

The plaintiffs in Murthy v. Missouri had claimed, among other things, that the Biden administration illegally coerced social media platforms to moderate certain election-related content and posts related to COVID-19.

Justice Alito’s dissent disputed the majority’s arguments about standing while detailing communications between the Biden administration and Facebook. He said administration officials’ actions were “blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.”

Majority ‘Shirks’ Its Duty: Alito

Justice Alito wrote that there was “more than sufficient” evidence that Jill Hines, one of the plaintiffs, had standing to sue, so the court is “obligated to tackle the free speech issue that the case presents.”

“The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think,” he wrote.

The dissent warned that the majority, whose opinion was written by Justice Amy Coney Barrett, sent a message to government officials that if a “coercive campaign is carried out with enough sophistication, it may get by.”

He suggested the outcome should have been the same as in National Rifle Association v. Vullo, which was heard on the same day as Murthy and ultimately held that New York state’s government plausibly violated the First Amendment by pressuring companies to cut ties with the gun rights group.

The U.S. Court of Appeals for the Fifth Circuit Court ruled last year that the administration’s communications constituted the type of coercion of social media companies that betrayed its duty not to violate the First Amendment.

Three judges signed onto the September 2023 opinion that cited communications in detail. For example, it stated that a White House official “responded to a moderation report by flagging a user’s account and saying it is ‘[h]ard to take any of this seriously when you’re actively promoting anti-vaccine pages.’”

It continued: “The platform subsequently ’removed‘ the account ’entirely‘ from its site, detailed new changes to the company’s moderation policies, and told the official that ’[w]e clearly still have work to do.’”

“The official responded that ’removing bad information‘ is ’one of the easy, low-bar things you guys [can] do to make people like me think you’re taking action.‘ The official emphasized that other platforms had ’done pretty well‘ at demoting non-sanctioned information, and said ’I don’t know why you guys can’t figure this out.’”


In his June 26 opinion, Justice Alito described tech platforms as “critically dependent on the protection provided by [Section] 230 of the Communications Decency Act of 1996 … which shields them from civil liability for content they spread.”

He added that Facebook faced a regulatory environment that incentivized the company to “please important federal officials and the record in this case shows that high-ranking officials skillfully exploited Facebook’s vulnerability.”

The administration, he said, “continuously and persistently hectored Facebook” while the platform’s “reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions.”

“Instead,” he added, “Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster.”

He later wrote, “Internal Facebook emails paint a clear picture of subservience.”

A smartphone and a computer screen displaying the logos of the social network Facebook and its parent company Meta in Toulouse, southwestern France, on Jan. 12, 2023. (Lionel Bonaventure/AFP via Getty Images)
A smartphone and a computer screen displaying the logos of the social network Facebook and its parent company Meta in Toulouse, southwestern France, on Jan. 12, 2023. (Lionel Bonaventure/AFP via Getty Images)

The dissent also considered a variety of communications between White House officials Andy Slavitt and Rob Flaherty. For example, it noted that Mr. Flaherty, who served as White House director of digital strategy, accused Facebook of “hiding the ball” and suggested the company was “playing a shell game.”

Justice Alito also pointed to Facebook’s changing policy amid White House criticism. Facebook representatives, he said, “pleaded to know how they could ‘get back to a good place’ with the White House.”

Meta, Facebook’s parent company, didn’t immediately respond to The Epoch Times’ request for comment.

Brian Fletcher, principal deputy solicitor general of the United States, acknowledged that the government “may not use coercive threats to suppress speech,” but argued it was “entitled to speak for itself by informing, persuading, or criticizing private speakers.”

There is a “fundamental distinction between persuasion and coercion,” he said.

Justice Alito disagreed and argued that the administration was doing more than exercising its power in the bully pulpit.

“In sum, the officials wielded potent authority,” he said. “Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield.”

Matthew Vadum contributed to this report.


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