Americans’ Right to Speak Suffers a Body Blow From Supreme Court

Jack Fitzhenry / Hans von Spakovsky (Daily Signal) 

In a setback for First Amendment free speech rights, the Supreme Court on Wednesday held in Murthy v. Missouri that no plaintiff in the case had established standing to challenge the government’s coordinated censorship of dissenting views on COVID-19 and the 2020 election on social media platforms.

Justice Amy Coney Barrett wrote the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson.

Standing, the issue that comprises the entirety of Barrett’s opinion, is a legal doctrine that limits the power of courts to hear a case. To have standing, a plaintiff must demonstrate that he has suffered a concrete injury, traceable to government action and redressable by a ruling in his favor before he can challenge a government action in court.

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Despite a comprehensive record developed in the lower courts, the majority held that none of the states or individuals involved met that standard.

Barrett also criticized the plaintiffs for not suing the social media platforms that censored their posts. Barrett noted that their standing claims “depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts.”

Instead, she wrote, they “seek to enjoin the Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.”

The evidence was clear that the federal government used back channels between the White House and other executive branch officials, including the FBI, and social media platforms to suppress opinions and views, even factually supported ones, at odds with the positions taken by the Biden administration on everything ranging from COVID-19 to the 2020 election.

The White House’s barrage of demands came paired with intimations and implied threats that the administration might pursue increased antitrust enforcement against the platforms or might push to revise laws to remove immunity from civil liability that the platforms currently enjoy for their content-moderation practices should they decline to comply with the government’s desires.

The parties affected by the executive branch’s censorship that filed the lawsuit included the states of Louisiana and Missouri, which sued on behalf of their residents, as well as epidemiologists Jay Bhattacharya and Martin Kulldorff, famous for the Great Barrington Declaration that criticized mass lockdowns and advocated for targeted prevention strategies during the COVID-19 pandemic.

During the discovery process in the lower courts, the challengers uncovered reams of evidence demonstrating the lengths to which executive branch actors went to ensure that views contrary to those of the White House and the Biden administration would not be disseminated online, and that accounts of members of the public that the administration didn’t like were suspended or terminated.

After months of emails and phone calls in which White House officials accused platforms such as Facebook of “killing people” and fomenting “insurrection,” the platforms caved and rewrote their content-moderation policies to suit the Biden administration’s preferences. The lower courts were aghast.

Having reviewed the large evidentiary record, U.S. District Court Judge Terry Doughty deemed the White House’s effort “the most massive attack against free speech in United States’ history,” and broadly enjoined executive branch agencies from communicating with the platforms.

On appeal, the 5th U.S. Circuit Court of Appeals narrowed the scope of Doughty’s injunction, but affirmed that, by threats and encouragement, the executive branch had co-opted the social media platforms’ content-moderation process, making the downgrade or deletion of plaintiffs’ posts a form of state action that violated the First Amendment.

Regrettably, a majority of the justices on the U.S. Supreme Court did not agree. The decision solidifies Barrett’s reputation as the court’s hawk on standing, by raising the burden of proving standing to new heights. At a minimum, Barrett declared, each plaintiff must show that “a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff ’s speech on that topic.”

And that would only begin the required labors. Because plaintiffs sought to stop the government from censoring future posts, the court held that they would have to demonstrate from proven past censorship some substantial likelihood of future censorship.

Barrett spends pages dissecting the evidence for standing with all the exacting verve of an IRS auditor. She determined that the plaintiffs failed to establish the causal connection between government action and censorship with the level of particularity that the majority desired.

Even Jill Hines, co-director of Health Freedom Louisiana, who had her vaccine information groups repeatedly deleted by Facebook, had, in Barrett’s estimation, “little momentum going forward.”

Barrett concluded that “without proof of an ongoing pressure campaign,” the court would not exercise “general legal oversight of the other branches of Government.”

But less than a month ago, the court was singing a different tune. In NRA v. Vullo, the court unanimously held that the First Amendment prevented government officials from coercing third parties to suppress unpopular speech.

That approach, wrote Sotomayor, “allows government officials to be more effective in their speech-suppression efforts because intermediaries will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.”

That description fits Murthy as well as Vullo, so what happened?

That’s what Justice Samuel Alito asks pointedly in a dissent joined by Justices Clarence Thomas and Neil Gorsuch. Alito wrote: “Officials who read today’s decision together with Vullo will get the message: If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”

Alito conducted a review of the record no less searching than Barrett’s, but came away with the opposite conclusion: Hines, at the very least has standing, because her posts were removed by policies caused by the government’s threats, and those policies remain in effect. Hines, said Alito, was not required to prove that the government’s unlawful pressure was the sole cause of her injury to establish standing.

The majority avoided the First Amendment dispute and ruled on procedural grounds. But as Alito pointed out, even procedural rulings can have obvious effects on substantive guarantees like free speech.

He reminded the majority that the White House and other executive branch agencies plainly “engaged in a covert scheme of censorship.” Facebook, he notes, was vulnerable to the White House’s pressure after officials repeatedly threatened the platform’s most valuable legal asset: its immunity from publisher’s liability under Section 230 of the Communications Decency Act, a 1996 relic of the pre-social media era.

The Murthy decision is the most recent in a lengthening line of significant cases to reach the Supreme Court only to be turned back for lack of standing.

In just the past few terms, the court pulled similar maneuvers in cases involving student loan cancellation, border enforcement, and federal approval of abortifacients. And yet, as Alito pointed out, past Supreme Court decisions had no difficulty finding standing when plaintiffs offered strained theories of injury arising from climate change, the denied entry of a communist foreign national, and the Trump administration’s census citizenship question.

Perhaps, the Supreme Court is engaged in legitimate retrenchment on standing, one which will depart from those older precedents and make it more difficult for litigants of all stripes to challenge government action in court. But for now, the court’s use of standing seems to cut only against litigants of a conservative persuasion, making the deployment of standing look more opportunistic than principled.

Alito warned at the end of his dissent that the Supreme Court “unjustifiably refuses to address this serious threat to the First Amendment.” Unfortunately, he’s right.