On Monday, the Supreme Court declined to review an appeal from X (formerly Twitter), alleging that the US government’s censorship of X transparency reports served as a prior restraint on the platform’s speech and was unconstitutional.
This free speech battle predates Elon Musk’s ownership of the platform. Since 2014, the social media company has “sought to accurately inform the public about the extent to which the US government is surveilling its users,” X’s petition said, while the government has spent years effectively blocking precise information from becoming public knowledge.
Current law requires that platforms instead only share generalized statistics regarding government information requests—using government-approved reporting bands such as “between 0 and 99 times”—so that people posing as national security threats can never gauge exactly how active the feds are on any given platform.
But that law also gives the government and platforms discretion to agree when sharing exact statistics might pose no security risk. X argued that government censorship of its transparency reports should only occur when the government can prove there is a serious and imminent risk to national security if precise data is shared with the public. Due to the conflicting opinions in lower courts, X hoped that the Supreme Court would review the case and mandate judicial review of government requests to censor its transparency reports.
So far, the Supreme Court has not explained its decision not to take on the case, and it remains unclear if any justices have expressed interest in reviewing the case, CNBC reported.
Soon after the court’s decision was announced, X owner Elon Musk expressed his dissatisfaction with the decision.
“Disappointing that the Supreme Court declined to hear this matter,” Musk posted on X.
X had argued that the public has a “significant interest” in knowing how often the US government requests information on X users. Prior restraints on speech are “highly dangerous,” X warned, and require prompt judicial oversight.
“It would be profoundly dangerous to democratic governance if the government, without first (or promptly) having to justify the speech restrictions before a court, could prevent citizens from reporting their encounters with government officials,” X argued.
A spokesperson for the Electronic Frontier Foundation—a nonprofit digital rights group that filed a brief in support of X in the lawsuit—shared a statement with Ars, expressing EFF’s disappointment in the SCOTUS decision.
“Companies should be able to tell us how often the government seeks information from them about us,” EFF said. “This ruling confirms that the government, in the guise of national security, can censor companies from giving us even the most basic, aggregated information about its demands from them, information that could allow us to evaluate the government’s near-constant claims for more power to surveil us.”
Since the lawsuit was filed, X has arguably taken a stronger stance toward resisting federal surveillance on the platform. In perhaps the most prominent example, X was fined $350,000 last year for contempt after delaying responding to a Department of Justice search warrant seeking information on Donald Trump’s account on the social media platform, CNBC reported. X unsuccessfully attempted to block an order banning the platform from informing Trump about the warrant, arguing that it had a right to communicate with its subscriber. However, ultimately, a DC appeals court upheld the non-disclosure order.
