Major setback in landmark trial on censorship
SCOTUS rules in favour of the Biden administration in Murthy v Missouri BUT it's not the end of the fight…
The Supreme Court of the United States (SCOTUS) has ruled in favour of the Biden administration in Murthy v. Missouri, a lawsuit that accuses federal officials of violating the First Amendment by coercing social media companies to remove or downgrade disfavoured content.
A quick recap
The case originated in 2022 when the attorneys general of Missouri and Louisiana, along with several individuals, filed a lawsuit claiming that federal officials, including Surgeon General Vivek Murthy, the FBI, and the White House, had engaged in an "unprecedented, sprawling federal censorship enterprise” by coercing social media platforms to remove content related to the 2020 presidential election, covid-19, and other topics.
In July 2023, a district court judge issued a preliminary injunction prohibiting the Biden administration and anyone "acting in concert with them" from communicating with social media companies “for the purpose of urging, encouraging, pressuring, or inducing the removal or reduction of content containing protected free speech.”
On September 8, 2023, the Fifth Circuit largely affirmed the district court injunction, stating the White House strong armed social media companies to censor material, using “mafiosi-style” tactics with an underlying threat it might enforce legal reforms to Section 230 which currently protects social media platforms from civil liability in US courts for content that appears on their platforms. Section 230 states:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
This week’s SCOTUS decision effectively reverses the injunction.
Majority vote
SCOTUS did not rule on the merits of the case, but decided 6-3 that the plaintiffs (including psychiatrist Aaron Kheriaty, Great Barrington authors Jay Bhattacharya, Martin Kulldorff, Jill Hines of Health Freedom Louisiana, and others) lacked “standing” to sue.
In law, “standing” is the requirement that someone has suffered real and remediable harm as a result of someone else’s conduct.
In this case, the Supreme Court determined the plaintiffs did not show sufficient evidence of harm, or that they would face future harm due to the government’s actions, and therefore do not have the right to bring a lawsuit forward.
The majority opinion, authored by Justice Amy Coney Barrett, said that in asking for an injunction, plaintiffs had the responsibility of establishing “a real and immediate threat of repeated injury.”
She was not compelled by the evidence presented, and stated that had the parties been “seeking compensatory relief, the traceability of their past injuries would be the whole ball game.”
Of course, this has been seen as a victory for the Biden administration, which argued that the lawsuit was based on a "fact-free version of what transpired" between US government officials and social media companies.
Dissent in SCOTUS
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, issued a powerful dissent to the Supreme Court's ruling, which argued against the lack of standing by highlighting the case of Jill Hines, who was “indisputably injured” by the government’s covid-19 censorship campaign.
“This evidence was more than sufficient to establish Hines’s standing to sue… and consequently, we are obligated to tackle the free speech issue that the case presents,” added Alito. “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.”
Alito argued that the Court's decision was a grave mistake, stating that it "allows the Government to evade responsibility for its blatant violations of the First Amendment."
He called it "one of the most important free speech cases to reach this Court in years" and criticised the majority for failing to address the merits of the case, particularly the government's alleged coercion of social media platforms.
The dissent also highlighted the broader implications of the case, noting that "this case is not about a single instance of censorship but about a far-reaching and widespread censorship campaign conducted by high-ranking federal officials against Americans who expressed certain disfavored views."
Alito expressed concern that the Court's decision would have a chilling effect on free speech, allowing the government to pressure private companies to censor speech without judicial review.
A surprise?
Perhaps this week’s outcome was not a complete surprise.
In March this year, the Supreme Court heard oral arguments from both sides, and Justices Sonia Sotomayor and Amy Coney Barrett were already questioning whether the plaintiff’s had legal standing.
Justices Brett Kavanagh and Elena Kagan seemed unbothered by the US government “asking” media outlets to remove content, and referenced a time when they both worked as government agents and tried to persuade journalists to alter the content of stories.
And Justice Ketanji Brown Jackson questioned whether it would be fair to restrict the government’s ability to communicate with social media platforms in an emergency.
"My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” said Jackson.
It’s now clear these concerns did not dissipate during the deliberation process.
What now?
Despite this major setback for the plaintiffs, Missouri Attorney General Andrew Bailey was undeterred by the decision, promising to gather more evidence to strengthen the case.
“Missouri is not done,” stated Bailey on X. “We are going back to the district court to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all.”
“We will remain vigilant to build the wall of separation between tech and state, but I could not be prouder of what my team and this case has exposed so far,” he added. “Missouri will continue to lead the way in the fight to defend our most fundamental freedoms.”
An atrocious decision, but not unexpected. Justices Roberts, Barrett, and Kavanaugh clearly have been co-opted by the Left.
In addition to the blatant First Amendment violations, they dodged the crucial question: Who gets to define the truth, and therefore what constitutes misinformation?
Great article Marianne! 👌