Samuel Alito Blasts Supreme Court for Using 'New and Heightened Standard'

Justice Samuel Alito testifies on Capitol Hill on March 7, 2019 in Washington, DC. Alito acussed his colleagues of using a "new and heightened" standard in a social media censorship case.

Justice Samuel Alito blasted the Supreme Court for using a "new and heightened standard" when it issued a social media censorship case's ruling that sides with the Biden administration.

The Supreme Court voted 6-3 Wednesday that a group of Republican-led states lacked the ground to sue the federal government over its efforts to combat misinformation on social media platforms. Alito wrote the dissenting opinion in Murthy v. Missouri and was joined by Justices Clarence Thomas and Neil Gorsuch.

In his dissent, Alito argued that the Court reached its conclusion "by applying a

new and heightened standard" of traceability. He said that in order for the plaintiffs to sue the White House, they had to identify a "causal connection" between the actions of those officials and the alleged censorship but did not need to prove that the censorship took place only because of those actions.

"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," Alito wrote. "And in the Court's view, that fact makes it difficult to untangle Government-caused censorship from censorship that Facebook might have undertaken anyway."

One of the plaintiffs in the case was Jill Hines, a health activist who was subject to Facebook's content moderation policies over posts she wrote that questioned COVID-19 health guidance, including the vaccines. Alito argued that it was "reasonable to infer" that since Hines' posts were being moderated when the White House was in communication with social media companies over its concerns about misinformation, Hines was being censored in part because of the pressure Facebook was facing from the government.

"When the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook's censorship decisions," Alito's dissent reads. "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," the justice wrote. "No such chain was required in the Department of Commerce case, and neither should one be demanded here."

In Department of Commerce v. New York, which the Supreme Court decided in 2019, the court found that the secretary of commerce did not violate the Constitution or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire.

However, in Murthy, the Court found that the plaintiffs lacked "any concrete link between their injuries and the defendants' conduct."

Writing for the majority, Justice Amy Coney Barrett said, "With one or two potentially viable links, Hines makes the best showing of all the plaintiffs. Still, Facebook was targeting her pages before almost all of its communications with the White House and the CDC, which weakens the inference that her subsequent restrictions are likely traceable to 'government-coerced enforcement' of Facebook's policies, rather than to Facebook's independent judgment."

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