No Standing for Free Speech

Justice Alito writes an IllAdvised Opinion

The issue of ‘standing’ is one of the most dangerous issues in current constitutional law. There have been several cases where the court did not even address the underlying constitutional injury, because those bringing up the issue lacked ‘standing’. Let us be very clear, the end result of this doctrine was that the government was allowed to continue to act illegally.

Justice Alito, with whom Justice Thomas and Justice Gorsuch join, make a small effort here to address part of this problem.

(Please excuse and formatting issues, the copy/paste from the SC website doesn’t work very well.)

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Cite as: 603 U. S. ____ (2024) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 23–411

VIVEK H. MURTHY, SURGEON GENERAL, ET AL., PETITIONERS v. MISSOURI, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 26, 2024]

JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting.

This case involves what the District Court termed “a far-reaching and widespread censorship campaign” conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID–19 on social media. Missouri v. Biden, 680 F. Supp. 3d 630, 729 (WD La. 2023). Victims of the campaign perceived by the lower courts brought this action to ensure that the Government did not continue to coerce social media platforms to suppress speech. Among these victims were two States, whose public health officials were hampered in their ability to share their expertise with state residents; distinguished professors of medicine at Stanford and Harvard; a professor of psychiatry at the University of California, Irvine School of Medicine; the owner and operator of a news website; and Jill Hines, the director of a consumer and human rights advocacy organization. All these victims simply wanted tospeak out on a question of the utmost public importance.

To protect their right to do so, the District Court issued a preliminary injunction, App. 278–285, and the Court of Appeals found ample evidence to support injunctive relief. See Missouri v. Biden, 83 F. 4th 350 (CA5 2023).

If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases

to reach this Court in years. Freedom of speech serves many valuable purposes, but its most important role is protection of speech that is essential to democratic self-government, see Snyder v. Phelps, 562 U. S. 443, 451–452 (2011),and speech that advances humanity’s store of knowledge, thought, and expression in fields such as science, medicine, history, the social sciences, philosophy, and the arts, see United States v. Alvarez, 567 U. S. 709, 751 (2012) (ALITO, J., dissenting).

The speech at issue falls squarely into those categories.It concerns the COVID–19 virus, which has killed more than a million Americans.1 Our country’s response to the COVID–19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our dedication to a free marketplace of ideas demands that dissenting views on such matters be allowed. I assume that a fair portion of what social media users had to say about COVID–19 and the pandemic was of little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed.2 That is what inevitably happens when entry to

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1Centers for Disease Control and Prevention, Deaths by Week and State, https://www.cdc.gov/nchs/nvss/vsrr/COVID19/index.htm (last accessed June 21, 2024).

2This includes information about the origin of the COVID–19 virus. When the pandemic began, Facebook began demoting posts supporting the theory that the virus leaked from a laboratory. See Interim Staff Report of the House Judiciary Committee, The Censorship-Industrial Complex: How Top Biden White House Officials Coerced Big Tech ToCensor Americans, True Information, and Critics of the Biden Administration, p. 398 (May 1, 2024) (Committee Report), https://judiciary. house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-mediadocument/Censorship-Industrial-Complex-WH-Report_Appendix.pdf. “In February 2021, in response to . . . tense conversations with the new Administration,” Facebook changed its policy to instead remove posts aboutthe lab leak theory wholesale. Ibid.; accord, id., at 463 (Facebook executive explained that the platform removed these posts “[b]ecause we were

the marketplace of ideas is restricted.

Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, see National Rifle Association of America v. Vullo, 602 U. S. 175 (2024), and that is what happened inthis case.

The record before us is vast. It contains evidence of communications between many different government actors and a variety of internet platforms, as well as evidence regarding the effects of those interactions on the seven different plaintiffs. For present purposes, however, I will focus on (a) just a few federal officials (namely, those who worked either in the White House or the Surgeon General’s office),

(b)only one of the most influential social media platforms, Facebook, and (c) just one plaintiff, Jill Hines, because if any of the plaintiffs has standing, we are obligated to reach the merits of this case. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006).

With the inquiry focused in this way, here is what the

—————— under pressure from the administration and others to do more and it was part of the ‘more’ package”). But since then, both the Federal Bureau of Investigation and the Department of Energy have found that the theory is probably correct. See, e.g., A. Kaur & D. Diamond, FBI Director SaysCovid–19 “Most Likely” Originated From Lab Incident, Washington Post (Feb. 28, 2023), https://www.washingtonpost.com/nation/2023/02/28/fbidirector-christopher-wray-wuhan-lab; J. Herb & N. Bertrand, US Energy Department Assesses Covid–19 Likely Resulted From Lab Leak, Furthering US Intel Divide Over Virus Origin, CNN (Feb. 27, 2023),https: // www.cnn.com/ 2023/02/26/politics/covid-lab-leak-wuhan-chinaintelligence/index.html. Facebook reversed its policy, and Mark Zuckerberg expressed regret that the platform had ever removed the posts: “This seems like a good reminder that when we compromise our standards due to pressure from an administration in either direction, we’ll often regret it later.” Committee Report 398.

record plainly shows. For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she wasthreatened with more of the same when she brought suit. These past and threatened future injuries were caused byand traceable to censorship that the officials coerced, andthe injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992), and consequently, we are 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.

That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And 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.Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.

In the next section of this opinion, I will recount in some detail what was done by the officials in this case, but in considering the coercive impact of their conduct, two prominent facts must be kept in mind.

First, social media have become a leading source of news

for many Americans,3 and with the decline of other media, their importance may grow.

Second, internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company.4 And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they relyon the Federal Government’s diplomatic efforts to protect their interests.

For these and other reasons,5 internet platforms have apowerful incentive to please important federal officials, and the record in this case shows that high-ranking officials

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3See, e.g., J. Liedke & L. Wang, News Platform Fact Sheet, Pew Research Center (Nov. 15, 2023), https://www.pewresearch.org/journalism/fact-sheet/news-platform-fact-sheet; A. Watson, Most Popular Platforms for Daily News Consumption in the United States as of August 2022, byAge Group, Statista (Jan. 4, 2024), https://www.statista.com/statistics/717651/most-popular-news-platforms.

4C. Newton, Read the Full Transcript of Mark Zuckerberg’s LeakedInternal Facebook Meetings, The Verge (Oct. 1, 2019), https://www. theverge.com/2019/10/1/20892354/mark-zuckerberg-full-transcript-leakedfacebook-meetings.

5For pending or potential legislation affecting internet platforms, see Congressional Research Service, C. Cho, L. Zhu, & K. Busch, Defining and Regulating Online Platforms (Aug. 25, 2023), https://crsreports.congress.gov/product/pdf/R/R47662/11.

skillfully exploited Facebook’s vulnerability. When Facebook did not heed their requests as quickly or as fully as the officials wanted, the platform was publicly accused of “killing people” and subtly threatened with retaliation.

Not surprisingly these efforts bore fruit. Facebook adopted new rules that better conformed to the officials’ wishes, and many users who expressed disapproved viewsabout the pandemic or COVID–19 vaccines were “deplatformed” or otherwise injured.

I A

I begin by recounting the White House-led campaign to coerce Facebook. The story starts in early 2021, whenWhite House officials began communicating with Facebook about the spread of misinformation about COVID–19 on its platform. Their emails started as questions, e.g., “Can you also give us a sense of misinformation that might be falling outside of your removal polices?” 10 Record 3397. But when the White House did not get the results it wanted, its questions quickly turned to virtual demands. And sometimes, those statements were paired with explicit references to potential consequences.

We may begin this account with an exchange that occurred in March 2021, when the Washington Post reported that Facebook was conducting a study that examined whether posts on the platform questioning COVID–19’s severity or the vaccines’ efficacy dissuaded some Americans from being vaccinated.6 The study noted that Facebook’s rules permitted some of this content to circulate. Rob Flaherty, the White House Director of Digital Strategy, promptly emailed Facebook about the report. The subject

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6E. Dwoskin, Massive Facebook Study on Users’ Doubt in Vaccines Finds a Small Group Appears To Play a Big Role in Pushing the Skepticism, Washington Post (Mar. 14, 2021), https://www.washingtonpost.com/technology/2021/03/14/facebook-vaccine-hesitancy-qanon.

line of his email contained this accusation: “You are hiding the ball.” 30 id., at 9366. Flaherty noted that the White House was “gravely concerned that [Facebook] is one of thetop drivers of vaccine hesitancy,” and he demanded to know how Facebook was trying to solve the problem. Id., at 9365. In his words, “we want to know that you’re trying, we want to know how we can help, and we want to know that you’re not playing a shell game with us when we ask you what isgoing on.” Ibid.

Andy Slavitt, the White House Senior Advisor for theCOVID–19 Response, chimed in with similar complaints. “[R]elative to othe[r]” platforms, he said, “interactions withFacebook are not straightforward” even though the misinformation problems there, in his view, were “worse.” Id., at 9364. According to Slavitt, the White House did not believe that Facebook was “trying to solve the problem,” so he informed Facebook that “[i]nternally we have been considering our options on what to do about it.” Ibid.

Facebook responded apologetically to this and other missives. It acknowledged that “[w]e obviously have work to do to gain your trust.” Id., at 9365. And after a follow-up conversation, the platform promised Flaherty and Slavitt that it would adopt additional policies to “reduc[e] virality of vaccine hesitancy content.” Id., at 9369. In particular, Facebook promised to “remove [any] Groups, Pages, and Accounts” that “disproportionately promot[e] . . . sensationalized content” about the risks of vaccines, even though it acknowledged that user stories about their experiences and those of family members or friends were “ofte[n] true.” Ibid. Facebook also promised to share additionaldata with the White House, ibid., but Flaherty was not fully satisfied. He said that the additional data Facebook offered was not “going to get us the info we’re looking for,” but “it shows to me that you at least understand the ask.” Id., at 9368.

In April, Flaherty again demanded information on the

“actions and changes” Facebook was taking “to ensure you’re not making our country’s vaccine hesitancy problem worse.” Id., at 9371. To emphasize his urgency, Flaherty likened COVID–19 misinformation to misinformation that led to the January 6 attack on the Capitol. Ibid. Facebook, he charged, had helped to “increase skepticism” of the 2020 election, and he claimed that “an insurrection . . . was plotted, in large part, on your platform.” Ibid. He added: “I want some assurances, based in data, that you are not doing the same thing again here.” Ibid. Facebook was surprised by these remarks because it “thought we were doinga better job” communicating with the White House, but it promised to “more clearly respon[d]” in the future. Ibid.

The next week, Facebook officers spoke with Slavitt and Flaherty about reports of a rare blood clot caused by theJohnson & Johnson vaccine. Id., at 9385. The conversation quickly shifted when the White House noticed that one of the most-viewed vaccine-related posts from the past week was a Tucker Carlson video questioning the efficacy of the Johnson & Johnson vaccine. Id., at 9376, 9388. Facebook informed the White House that the video did not “qualify for removal under our policies” and thus would be demoted instead, ibid., but that answer did not please Flaherty.“How was this not violative?” he queried, and “[w]hat exactly is the rule for removal vs demoting?” Id., at 9387. Then, for the second time in a week, he invoked the January 6 attack: “Not for nothing, but last time we did this dance, it ended in an insurrection.” Id., at 9388. When Facebook did not respond promptly, he made his demand more explicit: “These questions weren’t rhetorical.” Id., at 9387.

If repeated accusations that Facebook aided an insurrection did not sufficiently convey the White House’s displeasure, Flaherty and Slavitt made sure to do so by phone.7 In

—————— 7Notes recounting these calls were released by the House Judiciary Committee after the District Court entered the preliminary injunction

one call, both officials chided Facebook for not being“straightforward” and not “play[ing] ball.” Committee Report 141–142. Flaherty also informed Facebook that he wasreporting on the COVID–19 misinformation problem to the President. Id., at 136.

After a second call, a high-ranking Facebook executiveperceived that Slavitt was “outraged—not too strong a wordto describe his reaction”—that the platform had not removed a fast-spreading meme suggesting that the vaccinesmight cause harm. Id., at 295. The executive had “countered that removing content like that would represent a significant incursion into traditional boundaries of free expression in the US,” but Slavitt was unmoved, in part because he presumed that other platforms “would never acceptsomething like this.” Ibid.

A few weeks later, White House Press Secretary JenPsaki was asked at a press conference about Facebook’s decision to keep former President Donald Trump off the platform. See Press Briefing by Press Secretary Jen Psaki and Secretary of Agriculture Tom Vilsack (May 5, 2021) (hereinafter May 5 Press Briefing).8 Psaki deflected that question but took the opportunity to call on platforms like Facebook to “‘stop amplifying untrustworthy content . . . , especially related to COVID–19, vaccinations, and elections.’” 78 Record 25170. In the same breath, Psaki reminded the platforms that President Biden “‘supports . . . a robust anti-trust program.’” Id., at 25171 (emphasis deleted); May 5 Press Briefing.

Around this same time, Flaherty and Slavitt were in- terrogating Facebook on the mechanics of its content-moderation rules for COVID–19 misinformation. 30 Record

—————— and were published in a Committee Report. See Committee Report; Fed. Rule Evid. 201.

8https://www.whitehouse.gov/briefing-room/press-briefings/2021/05/05/press-briefing-by-press-secretary-jen-psaki-and-secretary-of-agriculture-tom-vilsack-may-5-2021.

9391, 9397. Flaherty also forwarded to Facebook a “COVID–19 Vaccine Misinformation Brief ” that had been drafted by outside researchers and was “informing thinking” in the White House on what Facebook’s policies should be. 52 id., at 16186. This document recommended that Facebook strengthen its efforts against misinformation in several ways. It recommended the adoption of “progressively severe penalties” for accounts that repeatedly posted misinformation, and it proposed that Facebook make it harder for users to find “anti-vaccine or vaccine-hesitant propaganda” from other users. Ibid. Facebook declined to adoptsome of these suggestions immediately, but it did “se[t] up more dedicated monitoring for [COVID] vaccine content” and adopted a policy of “stronger demotions [for] a broader set of content.” 30 id., at 9396.

The White House responded with more questions. Acknowledging that he sounded “like a broken record,” Flaherty interrogated Facebook about “how much content is being demoted, and how effective [Facebook was] at mitigating reach, and how quickly.” Id., at 9395. Later, Flaherty chastised Facebook for failing to prevent some vaccine-hesitant content from showing up through the platform’s search function. Id., at 9400. “‘[R]emoving bad information from search’ is one of the easy, low-bar things you guys do to make people like me think you’re taking action,”he said. Id., at 9399. “If you’re not getting that right, itraises even more questions about the higher bar stuff.” Ibid. A few weeks after this latest round of haranguing,Facebook expanded penalties for individual Facebook accounts that repeatedly shared content that fact-checkers deemed misinformation; henceforth, all of those individuals’ posts would show up less frequently in their friends’ news feeds. See 9 id., at 2697; Facebook, Taking ActionAgainst People Who Repeatedly Share Misinformation

(May 26, 2021).9

Perhaps the most intense period of White House pressure began a short time later. On July 15, Surgeon General Vivek Murthy released an advisory titled “Confronting HealthMisinformation.” 78 Record 25171, 25173. Dr. Murthy suggested, among other things, algorithmic changes to demote misinformation and additional consequences for misinformation “‘super-spreaders.’” U. S. Public Health Service, Confronting Health Misinformation: The U. S. Surgeon General’s Advisory on Building a Healthy Information Environment 12 (2021).10 Dr. Murthy also joined Psaki at apress conference, where he asked the platforms to take“much, much more . . . aggressive action” to combatCOVID–19 misinformation “because it’s costing people their lives.” Press Briefing by Press Secretary Jen Psaki and Surgeon General Dr. Vivek H. Murthy (July 15, 2021).11

At the same press conference, Psaki singled out Facebook as a primary driver of misinformation and asked the platform to make several changes. Facebook “should provide,publicly and transparently, data on the reach of COVID–19[and] COVID vaccine misinformation.” Ibid. It “needs to move more quickly to remove harmful, violative posts.” Ibid. And it should change its algorithm to promote “quality information sources.” Ibid. These recommendations echoed Slavitt’s and Flaherty’s private demands from the preceding months—as Psaki herself acknowledged. The White House “engage[s] with [Facebook] regularly,” she said, and Facebook “certainly understand[s] what our asks

—————— 9https://about.fb.com/news/2021/05/taking-action-against-people-whorepeatedly-share-misinformation. 10https://www.hhs.gov/sites/default/files/surgeon-general-misinformationadvisory.pdf.

11https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/15/press-briefing-by-press-secretary-jen-psaki-and-surgeon-general-drvivek-h-murthy-july-15-2021.

are.” Ibid. Apparently, the White House had not gotteneverything it wanted from those private conversations, so itwas turning up the heat in public.

Facebook responded by telling the press that it had partnered with the White House to counter misinformation and that it had “removed accounts that repeatedly break the rules” and “more than 18 million pieces of COVID misinformation.” 78 Record 25174. But at another press briefing the next day, Psaki said these efforts were “[c]learly not”sufficient and expressed confidence that Facebook would“make decisions about additional steps they can take.” See id., at 25175; Press Briefing by Press Secretary Jen Psaki(July 16, 2021).12

That same day, President Biden told reporters that socialmedia platforms were “‘killing people’” by allowing COVID-related misinformation to circulate. 78 Record 25174, 25212. At oral argument, the Government suggested that the President later disclaimed any desire to hold the platforms accountable for misinformation, Tr. of Oral Arg. 34–35, but that is not so. The President’s so-called clarification, like many other statements by Government officials, called on “‘Facebook’” to “‘do something about the misinformation’” on its platform. B. Klein, M. Vazquez, & K. Collins, Biden Backs Away From His Claim That Facebook Is‘Killing People’ by Allowing COVID Misinformation, CNN (July 19, 2021).13

And far from disclaiming potential regulatory action, theWhite House confirmed that it had not “‘taken any options off the table.’” Ibid. In fact, the day after the President’s supposed clarification, the White House CommunicationsDirector commended the President for “speak[ing] very aggressively” and affirmed that platforms “certainly . . . ——————

12https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021.

13https://www.cnn.com/2021/07/19/politics/joe-biden-facebook/index .html.

should be held accountable” for publishing misinformation.61 Record 19400–19401. Indeed, she said that the White House was “reviewing” whether §230 should be amended toopen the platforms to suit. Id., at 19400.

Facebook responded quickly. The same day the President made his “killing people” remark, the platform reached out to Dr. Murthy to determine “the scope of what the White House expects from us on misinformation going forward.” 9 id., at 2690. The next day, Facebook asked officials about how to “get back to a good place” with the White House. 30 id., at 9403. And soon after, Facebook sent an email saying that it “hear[d]” the officials’ “call for us to do more,” andpromptly assured the White House that it would comply. 9 id., at 2706. In spite of the White House’s inflammatory rhetoric, Facebook at all times went out of its way to strike a conciliatory tone. Only two days after the President’s remark—and before his supposed clarification—Facebook assured Dr. Murthy that, though “it’s not great to be accused of killing people,” Facebook would “find a way to deescalate and work together collaboratively.” Id., at 2713.

Concrete changes followed in short order. In early August, the Surgeon General’s Office reached out to Facebook for “an update of any new/additional steps you are takingwith respect to health misinformation in light of ” the July15 advisory. Id., at 2703. In response, Facebook informed the Surgeon General that it would soon “expan[d] [its] COVID policies to further reduce the spread of potentiallyharmful content.” Id., at 2701.

White House-Facebook conversations about misinformation did not end there. In September, the Wall Street Journal wrote about the spread of misinformation on Facebook, and Facebook preemptively reached out to the White House to clarify. 8 id., at 2681. Flaherty asked (again) forinformation on “how big the problem is, what solutions you’re implementing, and how effective they’ve been.” Ibid.

Then in October, the Washington Post published yet another story suggesting that Facebook knew more than it let on about the spread of misinformation. Flaherty emailedthe link to Facebook with the subject line: “not even surewhat to say at this point.” Id., at 2676. And the Surgeon General’s Office indicated both publicly and privately that it was disappointed in Facebook. See @Surgeon_General, X (Oct. 29, 2021) (accusing Facebook of “lacking . . . transparency and accountability”);14 9 Record 2708. Facebook offered to speak with both the White House and theSurgeon General’s Office to assuage concerns. 8 id., at 2676.

Interactions related to COVID–19 misinformation continued until at least June 2022. Id., at 2663. At that point,Facebook proposed discontinuing its reports on misinformation, but assured the White House that it would be “happy to continue, or to pick up at a later date, . . . if we hear from you that this continues to be of value.” Ibid. Flaherty asked Facebook to continue reporting on misinformation because the Government was preparing to roll outCOVID–19 vaccines for children under five years old and,“[o]bviously,” that rollout “ha[d] the potential to be just ascharged” as other vaccine-related controversies. Ibid. Flaherty added that he “[w]ould love to get a sense of what youall are planning here,” and Facebook agreed to provide information for as long as necessary. Ibid.

What these events show is that top federal officials continuously and persistently hectored Facebook to crack downon what the officials saw as unhelpful social media posts,including not only posts that they thought were false ormisleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. See, e.g., 30 id., at 9361, 9365, 9369, 9385–9388. And Facebook’s reactions to these efforts were not what one would expect from

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https://twitter.com/Surgeon_General/status/1454181191494606854.

an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions. Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” Id., at 9365. When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. Id., at 9371. They pleaded to knowhow they could “get back to a good place” with the White House. Id., at 9403. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. 9 id., at 2713; 78 id., at 25174. The picture is clear.

B While all this was going on, Jill Hines and others weresubjected to censorship. Hines serves as the co-director of Health Freedom Louisiana, an organization that advocated against vaccine and mask mandates during the pandemic.Over the course of the pandemic—and while the White House was pressuring Facebook—the platform repeatedly censored Hines’s speech. For instance, in the summer and fall of 2021, Facebook removed two groups that Hines had formed to discuss the vaccine. 4 id., at 1313–1315. In January 2022, Facebook restricted posts from Hines’s personal page “for 30 days . . . for sharing the image of a display board used in a legislativehearing that had Pfizer’s preclinical trial data on it.” Id., at 1313. In late May, Facebook restricted Hines for 90 daysfor sharing an article about “increased emergency calls for teens with myocarditis following [COVID] vaccination.” Id., at 1313–1314. Hines’s public pages, Reopen Louisiana and Health Freedom Louisiana, were subjected to similar treatment. Facebook’s disciplinary actions meant that bothpublic pages suffered a drop in viewership; as Hines put it,

“Each time you build viewership up [on a page], it is knocked back down with each violation.” Id., at 1314. And from February to April 2023, Facebook issued warnings and violations for several vaccine-related posts shared on Hines’s personal and public pages, including a post by Robert F. Kennedy, Jr., and an article entitled “‘Some Americans Shouldn’t Get Another COVID-19 Vaccine Shot, FDA Says.’” 78 id., at 25503–25506. The result was that “[n]o one else was permitted to view or engage with the[se] post[s].” Id., at 25503.

II Hines and the other plaintiffs in this case brought this suit and asked for an injunction to stop the censorship campaign just described. To maintain that suit, they needed to show that they (1) were imminently threatened with an injury in fact (2) that is traceable to the defendants and (3)that could be redressed by the court. Lujan, 504 U. S., at 560–561; O’Shea v. Littleton, 414 U. S. 488, 496 (1974).Hines satisfied all these requirements.

A Injury in fact. Because Hines sought and obtained a preliminary injunction, it was not enough for her to show thatshe had been injured in the past. Instead, she had to identify a “real and immediate threat of repeated injury” thatexisted at the time she sued—that is, on August 2, 2022. O’Shea, 414 U. S., at 496; see also Friends of the Earth, Inc.

v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 191 (2000); Mollan v. Torrance, 9 Wheat. 537, 539 (1824).

The Government concedes that Hines suffered past injury, but it claims that she did not make the showingneeded to obtain prospective relief. See Brief for Petitioners

17. Both the District Court and the Court of Appeals rejected this argument and found that Hines had shown that

she was likely to be censored in the future. 680 F. Supp. 3d, at 713; 83 F. 4th, at 368–369. We have previously examined such findings under the “clearly erroneous” test. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 77 (1978). But no matter what test is applied,the record clearly shows that Hines was still being censored when she sued—and that the censorship continued thereafter. See supra, at 15–16. That was sufficient to establish the type of injury needed to obtain injunctive relief. O’Shea, 414 U. S., at 496; see also County of Riverside v. McLaughlin, 500 U. S. 44, 51 (1991).

B Traceability. To sue the White House officials, Hines had to identify a “causal connection” between the actions of those officials and her censorship. Bennett v. Spear, 520

U. S. 154, 169 (1997). Hines did not need to prove that it was only because of those officials’ conduct that she was censored. Rather, as we held in Department of Commerce

v. New York, 588 U. S. 752 (2019), it was enough for her to show that one predictable effect of the officials’ action was that Facebook would modify its censorship policies in a way that affected her. Id., at 768.

Hines easily met that test, and her traceability theory isat least as strong as the State of New York’s in the Department of Commerce case. There, the State claimed that it would be hurt by a census question about citizenship. The State predicted that the question would dissuade some noncitizen households from complying with their legal duty to complete the form, and it asserted that this in turn could cause the State to lose a seat in the House of Representatives, as well as federal funds that are distributed on the basis of population. Id., at 766–767. Although this theorydepended on illegal conduct by third parties and an attenuated chain of causation, the Court found that the State had established traceability. It was enough, the Court held,

that the failure of some aliens to respond to the census was “likely attributable” to the Government’s introduction of a citizenship question. Id., at 768.

This is not a demanding standard, and Hines made therequisite showing—with room to spare. Recall that officials from the White House and Surgeon General’s Office repeatedly hectored and implicitly threatened Facebook to suppress speech expressing the viewpoint that Hines espoused. See supra, at 6–15. Censorship of Hines was the “predictable effect” of these efforts. Department of Commerce, 588

U. S., at 768. Or, to put the point in different terms, Facebook would “likely react in predictable ways” to this unrelenting pressure. Ibid.

This alone was sufficient to show traceability, but here there is even more direct proof. On numerous occasions, the White House officials successfully pushed Facebook to tighten its censorship policies, see supra, at 7, 10, 13, and those policies had implications for Hines.15 First, in March

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15The Court discounts this evidence because Hines did not draw the same links in her briefing. See ante, at 20, n. 7. But we have an “independent obligation” to assess standing, Summers v. Earth Island Institute, 555 U. S. 488, 499 (2009), and a “virtually unflagging obligation” to exercise our jurisdiction if standing exists, Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). “[A] case like this one, where the record spans over 26,000 pages” and the plaintiffshave provided numerous facts, deserves some scrutiny before we simplybrush standing aside. Ante, at 20, n. 7.

As it happens, Hines has said enough to establish standing. First, she says that, at the behest of the White House, Facebook announced new measures to combat misinformation about COVID–19 and the vaccines. Second, she says that her Facebook pages fell under those policies.Third, she says that she suffered the penalties imposed by Facebook,such as demotion of her posts and pages. See 4 Record 1315; 78 id., at 25503. She may not explicitly say that the policy changes caused the penalties she experienced. But what theory makes more sense—that a user falling within Facebook’s amended policies was censored underthose policies or that something else caused her injury?

2021, the White House pressured Facebook into implementing a policy of removing accounts that “disproportionately promot[e] . . . sensationalized content” about vaccines. Supra, at 7. Later that year, Facebook removed two of Hines’sgroups, which posted about vaccines. Supra, at 15. And when Hines sued in August 2022, she reported that her personal page was “currently restricted” for sharing vaccine-related content and, thus, that she was “under constant threat of being completely deplatformed.” 4 Record 1314.

Second, in May, Facebook told Slavitt that it would “se[t]up more dedicated monitoring” of vaccine content and apply demotions to “a broader set of content.” Supra, at 10. Then, a few weeks later, Facebook also increased demotions of posts by individual Facebook accounts that repeatedly shared misinformation. Ibid. Hines says that she was repeatedly fact-checked for posting about the vaccines, see supra, at 15–16; 4 Record 1314, so these policy changes apparently increased the risk that posts from her personalaccount would have been hidden from her friends’ Facebook feeds.

Third, in response to the July 2021 comments from the White House and the Surgeon General, Facebook made more changes. Supra, at 13. And from the details Hines provides about her posting history, this policy change would have affected her. For one thing, Facebook “rendered ‘nonrecommendable’” any page linked to another account thathad been “removed” for spreading misinformation about COVID–19. 9 Record 2701. Hines says that two of her groups were removed for alleged COVID misinformationaround this time. Supra, at 15; 4 Record 1315. So under the new policy, her other pages would apparently be non-recommendable. Perhaps for this reason, though Hines attempted to convince members of her deplatformed group tomigrate to a substitute group, only about a quarter of its membership made the move before the substitute group toowas removed. Ibid.

For another, Facebook “increas[ed] the strength of [its]demotions for COVID and vaccine-related content that third party fact checkers rate[d] as ‘Partly False’ or ‘Missing Context.’” 9 id., at 2701. And Facebook “ma[de] it easier to have Pages/Groups/Accounts demoted for sharing COVID and vaccine-related misinformation by . . . counting content removals” under Facebook’s COVID–19 policies “towards their demotion threshold.” Ibid. Under this new policy, Facebook would now consider Hines’s “numerous” community standards violations, 4 id., at 1314, when determining whether to make her posts less accessible toother users. So, for instance, when Hines received several citations in early 2023, this amendment would have governed Facebook’s decision to “downgrad[e] the visibility of [her] posts in Facebook’s News Feed (thereby limiting itsreach to other users).” 78 id., at 25503. The record here amply shows traceability.

The Court reaches the opposite conclusion by applying anew and heightened standard. The Court notes that Facebook began censoring COVID–19-related misinformation before officials from the White House and the Surgeon General’s Office got involved. Ante, at 20; see also Brief for Petitioners 18. And in the Court’s view, that fact makes it difficult to untangle Government-caused censorship fromcensorship that Facebook might have undertaken anyway.See ante, at 20. That may be so, but in the Department of Commerce census case, it also would have been difficult for New York to determine which noncitizen households failed to respond to the census because of a citizenship question and which had other reasons. Nevertheless, the Court did not require New York to perform that essentially impossible operation because it was clear that a citizenship question would dissuade at least some noncitizen households from responding. As we explained, “Article III ‘requires no more than de facto causality,’” so a showing that a citizenship question affected some aliens sufficed. Department of

21 Cite as: 603 U. S. ____ (2024)

Here, it is reasonable to infer (indeed, the inference leapsout from the record) that the efforts of the federal officials affected at least some of Facebook’s decisions to censor Hines. All of Facebook’s demotion, content-removal, and deplatforming decisions are governed by its policies.16 So when the White House pressured Facebook to amend someof the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook’s censorship decisions. Nothing more is needed. What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook’s rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.

In addition to this heightened linkage requirement, theCourt argues that Hines lacks standing because the threat of future injury dissipated at some point during summer 2022 when the officials’ pressure campaign tapered off. Ante, at 25, n. 10. But this argument errs in two critical respects. First, the effects of the changes the officials coerced persisted. Those changes controlled censorship decisions before and after Hines sued.

Second, the White House threats did not come with expiration dates, and it would be silly to assume that thethreats lost their force merely because White House officials opted not to renew them on a regular basis. Indeed, the record suggests that Facebook did not feel free to chart its own course when Hines sued; rather, the platform hadpromised to continue reporting to the White House and remain responsive to its concerns for as long as the officials requested. Supra, at 14.

—————— 16See Meta, Policies, https://transparency.meta.com/policies (last accessed June 19, 2024).

In short, when Hines sued in August 2022, there was still a link between the White House and the injuries she was presently suffering and could reasonably expect to suffer inthe future. That is enough for traceability.

C Redressability. Finally, Hines was required to show thatthe threat of future injury she faced when the complaint was filed “likely would be redressed” by injunctive relief. FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 380 (2024). This required proof that a preliminary injunction would reduce Hines’s “risk of [future] harm . . . to some extent.” Massachusetts v. EPA, 549 U. S. 497, 526 (2007) (emphasis added). And as we recently explained, “[t]he second and third standing requirements—causation and redressability—are often ‘flip sides of the same coin.’” Alliance for Hippocratic Medicine, 602 U. S., at 380. Therefore, “[i]f a defendant’s action causes an injury, enjoining the action or awarding damages for the action will typically redress that injury.” Id., at 381. Hines easily satisfied that requirement. For the reasons just explained, there is ample proof that Hines’s past injuries were a “predictable effect” of the Government’s censorship campaign, and the preliminary injunction was likely toprevent the continuation of the harm to at least “some extent.” Massachusetts v. EPA, 549 U. S., at 526. The Court disagrees because Facebook “remain[s] free to enforce . . . even those [policies] tainted by initial governmental coercion.” Ante, at 26. But as with traceability, the Court applies a new and elevated standard for redressability, which has never required plaintiffs to be “certain” that a court order would prevent future harm. Larson v. Valente, 456 U. S. 228, 243–244, n. 15 (1982). In Massachusetts v. EPA, for example, no one could say that the relief sought—reconsideration by the EPA of its decision not to regulate the emission of greenhouse gases—would actually

remedy the Commonwealth’s alleged injuries, such as theloss of land due to rising sea levels. The Court’s decision did not prevent the EPA from adhering to its prior decision, 549 U. S., at 534–535, and there was no way to know withany degree of certainty that any greenhouse gas regulationsthat the EPA might eventually issue would prevent theoceans from rising. Yet the Court found that the redressability requirement was met.

Similarly, in Department of Commerce, no one could saywith any certainty that our decision barring a censorshipquestion from the 2020 census questionnaire would prevent New York from losing a seat in the House of Representatives, 588 U. S., at 767, and in fact that result occurred despite our decision. S. Goldmacher, New York Loses House Seat After Coming Up 89 People Short on Census, N. Y.Times, Apr. 26, 2021.17

As we recently proclaimed in FDA v. Alliance for Hippocratic Medicine, Article III standing is an important component of our Constitution’s structural design. See 602 U. S., at 378–380. That doctrine is cheapened when the rules arenot evenhandedly applied.

* * * Hines showed that, when she sued, Facebook was censoring her COVID-related posts and groups. And because the White House prompted Facebook to amend its censorship policies, Hines’s censorship was, at least in part, caused bythe White House and could be redressed by an injunction against the continuation of that conduct. For these reasons, Hines met all the requirements for Article III standing.

III I proceed now to the merits of Hines’s First Amendment

—————— 17https://www.nytimes.com/2021/04/26/nyregion/new-york-censuscongress.html.

claim.18 Government efforts to “dictat[e] the subjects about which persons may speak,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784–785 (1978), or to suppress protected speech are “‘presumptively unconstitutional,’” Rosenberger

v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 830 (1995). And that is so regardless of whether the Government carries out the censorship itself or uses a third party“‘to accomplish what . . . is constitutionally forbidden.’” Norwood v. Harrison, 413 U. S. 455, 465 (1973).

As the Court held more than 60 years ago in Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963), the Government may not coerce or intimidate a third-party intermediaryinto suppressing someone else’s speech. Id., at 67. Earlier this Term, we reaffirmed that important principle in National Rifle Association v. Vullo, 602 U. S., at 187–191. As we said there, “a government official cannot do indirectly what she is barred from doing directly,” id., at 190, and while an official may forcefully attempt to persuade,“[w]hat she cannot do . . . is use the power of the State to punish or suppress disfavored expression,” id., at 188.

In Vullo, the alleged conduct was blunt. The head of the state commission with regulatory authority over insurancecompanies allegedly told executives at Lloyd’s directly and in no uncertain terms that she would be “‘less interested’” in punishing the company’s regulatory infractions if itceased doing business with the National Rifle Association. Id., at 183. The federal officials’ conduct here was more

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18To obtain a preliminary injunction, Hines was required to establish that she is likely to succeed on the merits, that she would otherwise suffer irreparable harm, and that the equities cut in her favor. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008). In a First Amendment case, the equities are bound up in the merits. See Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion) (“The loss of FirstAmendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”). So I focus on Hines’s likelihood of success.

subtle and sophisticated. The message was delivered piecemeal by various officials over a period of time in the form of aggressive questions, complaints, insistent requests, demands, and thinly veiled threats of potentially fatal reprisals. But the message was unmistakable, and it was dulyreceived.

The principle recognized in Bantam Books and Vullo requires a court to distinguish between permissible persuasion and unconstitutional coercion, and in Vullo, we looked to three leading factors that are helpful in making that determination: (1) the authority of the government officialswho are alleged to have engaged in coercion, (2) the natureof statements made by those officials, and (3) the reactions of the third party alleged to have been coerced. 602 U. S., at 189–190, and n. 4, 191–194. In this case, all three factors point to coercion.

A I begin with the authority of the relevant officials—highranking White House officials and the Surgeon General. High-ranking White House officials presumably speak for and may have the ability to influence the President, and asdiscussed earlier, a Presidential administration has the power to inflict potentially fatal damage to social media platforms like Facebook. See supra, at 5. Facebook appreciates what the White House could do, and President Biden has spoken openly about that power—as he has every right to do. For instance, he has declared that the “policy of [his] Administration [is] to enforce the antitrust laws to meet the challenges posed by . . . the rise of the dominant Internet platforms,” and he has directed the Attorney General and other agency heads to “enforce the antitrust laws . . . vigorously.” Promoting Competition in the American Economy, Executive Order No. 14036, 3 CFR 609 (2021).19 He has —————— 19https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american26

also floated the idea of amending or repealing §230 of the Communications Decency Act. See, e.g., B. Klein, White House Reviewing Section 230 Amid Efforts To Push Social Media Giants To Crack Down on Misinformation, CNN (July 20, 2021)20; R. Kern, White House Renews Call To ‘Remove’ Section 230 Liability Shield, Politico (Sept. 8, 2022).21

Previous administrations have also wielded significant power over Facebook. In a data-privacy case brought jointly by the Department of Justice and the Federal Trade Commission, Facebook was required “to pay an unprecedented $5 billion civil penalty,” which is “among the largest civil penalties ever obtained by the federal government.” PressRelease, Dept. of Justice, Facebook Agrees To Pay $5 Billion and Implement Robust New Protections of User Information in Settlement of Data-Privacy Claims (July 24,2019).22

A matter that may well have been prominent in Facebook’s thinking during the period in question in this casewas a dispute between the United States and the European Union over international data transfers. In 2020, the Court of Justice of the European Union invalidated the mechanism for transferring data between the European Unionand United States because it did not sufficiently protect EUcitizens from Federal Government surveillance. Data Protection Comm’r v. Facebook Ireland Limited, Case C–311/18 (2020). The EU-U. S. conflict over data privacy hinderedFacebook’s international operations, but Facebook could

—————— economy. 20https://www.cnn.com/2021/07/20/politics/white-house-section-230facebook/index.html. 21https://www.politico.com/news/2022/09/08/white-house-renews-callto-remove-section-230-liability-shield-00055771. 22https://www.justice.gov/opa/pr/facebook-agrees-pay-5-billion-andimplement-robust-new-protections-user-information.

not “resolve [the conflict] on its own.” N. Clegg & J. New-stead, Our Response to the Decision on Facebook’s EU-US Data Transfers, Meta (May 22, 2023).23 Rather, the platform relied on the White House to negotiate an agreement that would preserve its ability to maintain its trans-Atlantic operations. K. Mackrael, EU Approves Data-Transfer Deal With U. S., Averting Potential Halt in Flows, WallStreet Journal, July 10, 2023.24

It is therefore beyond any serious dispute that the top-ranking White House officials and the Surgeon General possessed the authority to exert enormous coercive pressure.

B 1

Second, I turn to of the officials’ communications with Facebook, which possess all the hallmarks of coercion that we identified in Bantam Books and Vullo. Many of the WhiteHouse’s emails were “phrased virtually as orders,” Bantam Books, 372 U. S., at 68, and the officials’ frequent follow-upsensured that they were understood as such, id., at 63. To take a few examples, after Flaherty read an article about content causing vaccine hesitancy, he demanded “to knowthat [Facebook was] trying” to combat the issue and “to know that you’re not playing a shell game with us when we ask you what is going on.” 30 Record 9365; see supra, at 7. The next month, he requested “assurances, based in data,”that Facebook was not “making our country’s vaccine hesitancy problem worse.” 30 Record 9371; see supra, at 7–8. A week after that, he questioned Facebook about its policies“for removal vs demoting,” and when the platform did not

—————— 23https://about.fb.com/news/2023/05/our-response-to-the-decision-onfacebooks-eu-us-data-transfers. 24https://www.wsj.com/articles/eu-approves-data-transfer-deal-withu-s-averting-potential-halt-in-flows-7a149c9.

promptly respond, he added: “These questions weren’t rhetorical.” 30 Record 9387; see supra, at 8. When Facebook provided the White House with some data it asked for, Flaherty thanked Facebook for demonstrating “that you atleast understand the ask.” 30 Record 9368; see supra, at 7.

Various comments during the July pressure campaign likewise reveal that the White House and the Surgeon General’s Office expected compliance. At the press conference announcing the Surgeon General’s recommendations related to misinformation, Psaki noted that the White House “engage[s] with [Facebook] regularly,” and Facebook “certainly understand[s] what our asks are.” Supra, at 11. The next day, she expressed confidence that Facebook would “make decisions about additional steps they can take.” 78 Record 25175; see supra, at 12. And eventually, the Surgeon General’s Office prompted Facebook for “an update of any new/additional steps you are taking with respect to health misinformation in light of” the July 15 advisory. 9 Record 2703; see supra, at 13.

These demands were coupled with “thinly veiled threats”of legal consequences. Bantam Books, 372 U. S., at 68. Three instances stand out. Early on, when the White Housefirst expressed skepticism that Facebook was effectivelycombatting misinformation, Slavitt informed the platform that the White House was “considering our options on what to do about it.” 30 Record 9364; see supra, at 7. In other words, if Facebook did not “solve” its “misinformation” problem, the White House might unsheathe its potent authority. 30 Record 9364.

The threat was made more explicit in May, when Psaki paired a request for platforms to “‘stop amplifying untrustworthy content’” with a reminder that President Biden “‘supports . . . a robust anti-trust program.’” 78 id., at 25170–25171 (emphasis deleted); May 5 Press Briefing; see also supra, at 9. The Government casts this reference to legal consequences as a defense of individual Americans

against censorship by the platforms. See Reply Brief 9. But Psaki’s full answer undermines that interpretation. Immediately after noting President Biden’s support for antitrust enforcement, Psaki added, “So his view is that there’s more that needs to be done to ensure that this type of . . . life-threatening information is not going out to the American public.” May 5 Press Briefing. The natural interpretation is that the White House might retaliate if the platforms allowed free speech, not if they suppressed it.

Finally, in July, the White House asserted that the platforms “should be held accountable” for publishing misinformation. 61 Record 19400; see supra, at 11–13. The totalityof this record—constant haranguing, dozens of demands for compliance, and references to potential consequences—evince “a scheme of state censorship.” Bantam Books, 372

U.S., at 72.

2 The Government tries to spin these interactions as fairly benign. In its telling, Flaherty, Slavitt, and other officialsmerely “asked the platforms for information” and then “publicly and privately criticized the platforms for what theofficials perceived as a . . . failure to live up to the platforms’ commitments.” Brief for Petitioners 31. References to consequences, the Government claims, were “fleeting and general” and “cannot plausibly be characterized as coercive threats.” Id., at 32. This characterization is not true to what happened. Slavitt and Flaherty did not simply ask Facebook for information. They browbeat the platform for months and madeit clear that if it did not do more to combat what they saw as misinformation, it might be called to account for itsshortcomings. And as for the supposedly “fleeting” natureof the numerous references to potential consequences, death threats can be very effective even if they are not delivered every day.

The Government also defends the officials’ actions on the ground that “[t]he President and his senior aides are entitled to speak out on such matters of pressing public concern.” Reply Brief 11. According to the Government, the officials were simply using the President’s “bully pulpit” to“inform, persuade, and protect the public.” Brief for Petitioners 5, 24.

This argument introduces a new understanding of the term “bully pulpit,” which was coined by President Theodore Roosevelt to denote a President’s excellent (i.e., “bully” 25) position (i.e., his “pulpit”) to persuade the public.

26 But Flaherty, Slavitt, and other officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. See Committee Report 1–2. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of thePresident’s bully pulpit. That stretches the concept beyond the breaking point.

In any event, the Government is hard-pressed to find any prior example of the use of the bully pulpit to threaten censorship of private speech. The Government cites four instances in which past Presidents commented publicly about the performance of the media. President Reagan lauded the media for “tough reporting” on drugs. Reagan Presidential Library & Museum, Remarks to Media Executives at a

—————— 25Webster’s International Dictionary of the English Language 191 (1902).

26See D. Goodwin, The Bully Pulpit: Theodore Roosevelt, WilliamHoward Taft, and the Golden Age of Journalism, pp. xi–xii (2013) (Goodwin).

White House Briefing on Drug Abuse (Mar. 7, 1988).27 But he never threatened to do anything to media outlets that were soft on the issue of drugs. President Theodore Roosevelt “lambasted ‘muck-raking’ journalists” as “‘one of the most potent forces for evil’” and encouraged journalists tospeak truth, rather than slander. Brief for Petitioners 24 (quoting The American Presidency Project, Remarks at the Laying of the Cornerstone of the Office Building of theHouse of Representatives (Apr. 14, 1906)).28 But his comment did not threaten any action against the muckrakers, see Goodwin 480–487, and it is unclear what he could have done to them. President George W. Bush denounced pornography as “debilitating” for “communities, marriages, families, and children.” Presidential Proclamation No. 7725, 3 CFR 129 (2003 Comp.). But he never threatened to take action against pornography that was not “obscene” within the meaning of our precedents.

The Government’s last example is a 1915 speech in whichPresident Wilson deplored false reporting that the Japanese were using Turtle Bay, California, as a naval base.The American Presidency Project, Address at the Associated Press Luncheon in New York City (Apr. 20, 1915).29 Speaking to a gathering of reporters, President Wilson proclaimed: “We ought not to permit that sort of thing to use up the electrical energy of the [telegraph] wires, because its energy is malign, its energy is not of the truth, its energy is mischief.” Ibid. Wilson’s comment is best understood as metaphorical and hortatory, not as a legal threat. And in any event, it is hard to see how he could have brought about censorship of telegraph companies because the Mann——————

27https://www.reaganlibrary.gov/archives/speech/remarks-media-executives-white-house-briefing-drug-abuse. 28https://www.presidency.ucsb.edu/documents/remarks-the-layingthe-cornerstone-the-office-building-the-house-representatives-the-man. 29https://www.presidency.ucsb.edu/documents/address-the-associatedpress-luncheon-new-york-city.

Elkins Act, enacted in 1910, deemed them to be common carriers, and that meant that they were obligated to transmit all messages regardless of content. See 36 Stat. 544– 545; T. Wu, A Brief History of American Telecommunications Regulation, in 5 Oxford International Encyclopedia ofLegal History 95 (2007). Thus, none of these examples justifies the conduct at issue here.

C Finally, Facebook’s responses to the officials’ persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations. Time and time again, Facebook responded to an angry White House with a promise to do better in the future. In March, Facebook attempted to assuage theWhite House by acknowledging “[w]e obviously have work to do to gain your trust.” 30 Record 9365. In April, Facebook promised to “more clearly respon[d] to [White House] questions.” Id., at 9371. In May, Facebook “committed to addressing the defensive work around misinformation that you’ve called on us to address.” 9 id., at 2698. In July, Facebook reached out to the Surgeon General after “the President’s remarks about us” and emphasized its efforts “to better understand the scope of what the White House expects from us on misinformation going forward.” Id., at 2690. And of course, as we have seen, Facebook repeatedly changed its policies to better address the White House’s concerns. See supra, at 7, 10, 13. The Government’s primary response is that Facebook occasionally declined to take its suggestions. Reply Brief 11; see, e.g., supra, at 10. The implication is that Facebook must have chosen to undertake all of its anti-misinformation efforts entirely of its own accord.That is bad logic, and in any event, the record shows otherwise. It is true that Facebook voluntarily undertook some anti-misinformation efforts and that it declined to make

some requested policy changes. But the interactions recounted above unmistakably show that the White House was insistent that Facebook should do more than it was doing on its own, see, e.g., supra, at 11–12, and Facebook repeatedly yielded—even if it did not always give the White House everything it wanted.

Internal Facebook emails paint a clear picture of subservience. The platform quickly realized that its “handling of[COVID] misinformation” was “importan[t]” to the WhiteHouse, so it looked for ways “to be viewed as a trusted, transparent partner” and “avoid . . . public spat[s].” Committee Report 181, 184, 188. After the White House blamed Facebook for aiding an insurrection, the platform realized that it was at a “crossroads . . . with the White House.” Id., at 294. “Given what is at stake here,” one Facebook employee proposed reevaluating the company’s “internal methods” to “see what further steps we may/may not be able to take.” Id., at 295. This reevaluation led to one of Facebook’s policy changes. See supra, at 8–10.

Facebook again took stock of its relationship with the White House after the President’s accusation that it was “killing people.” Internally, Facebook saw little merit inmany of the White House’s critiques. One employee labeled the White House’s understanding of misinformation “completely unclear” and speculated that “it’s convenient for them to blame us” “when the vaccination campaign isn’t going as hoped.” Committee Report 473. Nonetheless, Facebook figured that its “current course” of “in effect explaining ourselves more fully, but not shifting on where we draw the lines,” is “a recipe for protracted and increasing acrimonywith the [White House].” Id., at 573. “Given the bigger fish we have to fry with the Administration,” such as the EUU.

S. dispute over “data flows,” that did not “seem like a great place” for Facebook-White House relations “to be.” Ibid. So the platform was motivated to “explore somemoves that we can make to show that we are trying to be

responsive.” Ibid. That brainstorming resulted in the August 2021 rule changes. See supra, at 13, 19–20.

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

For these reasons, I would hold that Hines is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.

* * *

For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.