The majority opinion determined that the states didn't have standing, but Justice Samuel Alito's dissent made an argument that national security analyst Marcy Wheeler pointed out hurts one of Donald Trump's 2020 election claims.
Alito's opinion operates on the "presumption that he should measure a media outlet — even a social media company!! — based on its apparent subservience to government actors."
Read Also: Samuel Alito’s arrogance is of Biblical proportions
Justice Amy Coney Barrett argues that a Louisiana Republican who fought against the COVID vaccine and mask mandates had the strongest claim of being a victim of the social media mafia.
Still, however, “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.”
Alito, by contrast, tries to claim that Facebook was intimidated by the government and that's why it acted before the White House and CDC got involved.
"Alito really really wants to make this argument, because if he doesn’t he’s got nothing to show for this partisan effort! ACB even invokes a 7th Circuit quip about Alito’s efforts to go make this case for Hines: '[j]udges are not like pigs, hunting for truffles buried [in the record].'"
"Second, internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources," Alito writes. "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."
He claimed that the European Union was fighting with Facebook over international data transfers, when in 2020, Facebook's international operations were "hindered" due to data privacy laws.
The Section 702 program was revealed by Edward Snowden. Wheeler said in reality, Facebook has more leverage over the United States government than the other way around. Therefore, Facebook can set up a way for E.U. citizens to continue to operate financially.
Alito, however, argues the other way around and uses this as the crux of his argument that social media companies are being controlled by the government. He even goes so far as to allege that the president tormented Facebook into submission.
"Internal Facebook emails paint a clear picture of subservience," Alito writes. "The platform quickly realized that its 'handling of [COVID] misinformation' was 'importan[t]” to the White House, so it looked for ways 'to be viewed as a trusted, transparent partner' and “avoid . . . public spat[s].'"
Facebook's relationship with the Biden White House was "not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions.”
That's when Wheeler recalled the lawsuit against Fox by Dominion Voting Systems. Documents showed that the network was terrified that it would be cut off by Trump for calling the 2020 election for Biden.
On election night, Fox's opinion desk called Arizona for Biden. Trump's people were so furious that they called to demand the network pull back on the call. The expert in charge of the news desk lost his job over the ordeal, even though he proved to be accurate.
Wheeler also recalled some of the evidence that showed Tucker Carlson warning Trump could destroy the network.
"And so, in response, Fox started censoring factual news about Joe Biden’s win and instead choosing to report false claims of election fraud," she wrote. "Sammy Alito may believe that a President can’t take out a newspaper who crosses him."
Trump's threats to replace Fox with NewsMax resulted in the network censoring their network and employees.
Without thinking, Alito just made the argument that what Trump did was unconstitutional, according to the legal analyst.
Read the full write-up here.
