1) Demonstrate ‘traceability’ for their past injuries showing a likely future injury, meaning that just because you were censored in the past, what’s to prove that you were going to be censored in the future.2) Link their past social-media restrictions and the defendants’ communications with the platforms, meaning that the Plaintiffs needed to prove to the Court that each specific comment that was censored, was censored as a result of coercion from a specific federal agent, and that the communication with the federal agent was the reason for the censorship, not just a contributing factor.3) Show a ‘substantial risk of future injury’ that is traceable to the Government defendants, meaning that Plaintiffs had to show that the government would be censoring them on specific topics, on specific social media platforms, in the future. Plaintiffs needed to be able to show what the government would censor of your future speech, which agents would do it, and on what platforms.
CBS News: refers to the government coercion in the case as “contacts” with social media companies, and praises the decision.
NPR: says the case is about the government “talking” to social media companies, and praises the decision
Reason Magazine: calls this decision “dangerous.” Noting the decision will make challenging censorship much more difficult.
Washington Post: refers to the government coercion as mere “contacts” with social media, and praises the decision.
Take Hoft, the only plaintiff who has expressed interest in speaking about elections (and thus the only plaintiff with potential standing to sue the FBI and CISA). The FBI’s challenged conduct was ongoing at the time of the complaint, as the agency worked with the platforms during the 2022 midterm election season. Still, Hoft must rely on a “speculative chain of possibilities” to establish a likelihood of future harm traceable to the FBI. Id., at 414. Hoft’s future posts (presumably about the 2024 Presidential election) must contain content that falls within a misinformation trend that the FBI has identified or will identify in the future. The FBI must pressure the platforms to remove content within that category. The platform must then suppress Hoft’s post, and it must do so at least partly in response to the FBI, rather than in keeping with its own content-moderation policy. Hoft cannot satisfy his burden with such conjecture. CISA, meanwhile, stopped switchboarding in mid-2022, and the Government has represented that it will not resume operations for the 2024 election. Especially in light of his poor showing of traceability in the past, Hoft has failed to demonstrate likely future injury at the hands of the FBI or CISA—so the injunction against those entities cannot survive.
- “Future Harm” meaning that he will be censored in the future in the same way he’s being censored at present
- On similar topics and content that the government is likely to censor
- Which is going to be censored by the same government agency
- On a specific social media platform, and that the specific government agency censoring him is the one doing the censoring
- And it is not based on the social media company’s policies, but because of the government coercion
“Hello Mr. FBI Agent, could you please tell me in writing if you’re going to censor me questioning the results of voter fraud in the 2026 elections by emailing Twitter and demanding that I be deleted and deplatformed?”
States do not have third-party “standing as parens patriae to bring an action against the Federal Government” on behalf of their citizens who have faced social-media restrictions.
- In 2017, the courts issued a nationwide injunction to stop Trump’s policies limiting funding to cities and states that openly violated U.S. immigration law, places calling themselves ‘sanctuary cities’ for criminal immigrants.
- In 2019, the courts enjoined Trump’s ban on asylum seekers who were using third party countries to come to America.
- In 2020, the courts enjoined Trump’s attempt to stop transgender operations being funded by military healthcare.
- That she didn’t necessarily believe that “…if there was coercion [by the government], then we automatically have a First Amendment violation.”
- “So, in certain situations, you know, the government can actually require that speech be suppressed if there’s a compelling interest, right?”
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“So I think — I think that part of the reason why you might be running into all of these difficulties with respect to the different factual circumstances is because you’re not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so. And so that’s why I keep coming back to the actual underlying First Amendment issue, which we can isolate in this case and just talk about — about coercion, but I think there — that you have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it down, tell them to take it down. I mean, what about —what about the hypo of someone posting classified information? They say it’s my free speech right, I believe that I — you know, I got access to this information and I want to post it. Are you suggesting that the government couldn’t say to the platforms, we need to take that down?“
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