A bloodbath in the Supreme Court

This morning the Supreme Court held oral argument in the case that is now styled Murthy v. Missouri. C-SPAN has posted audio of the oral argument here.

The case arises from the government’s “encouragement” of censorship by the social media platforms, as documented in the Twitter Files. We have followed the case as it has wended its way through the district court to the Fifth Circuit and then to the Supreme Court. We (I) have been pulling for the plaintiffs.

The Supreme Court has already entered an order staying the narrowed preliminary injunction that had been fashioned by the Fifth Circuit while the case is pending before the Court. Justice Alito dissented from the stay. In his dissent he was joined by Justices Thomas and Gorsuch. I thought the Supreme Court stay was a bad sign of the likely outcome of the case.

In the event this morning, the plaintiff/respondents complaining of the government’s encouragement of censorship on social media platforms suffered a bloodbath, if I may use that word in its colloquial sense. If I am not allowed to use that word in its colloquial sense, I would say that the plaintiff/respondents had a bad day in Court.

I listened to the oral argument in order to assess the likely outcome of this interlocutory appeal. I think it is likely that the preliminary injunction stayed by the Supreme Court will be vacated and that the Fifth Circuit decision will be reversed. I am rashly reading the omens of the give-and-take in the argument like a Roman soothsayer examining entrails.

Although the appeal before the Court is interlocutory, meaning the case has not yet been fully litigated, it is not clear if anything will be left of the case when it is returned to the lower courts by the Court’s decision (by June 30). Interested observers are “encouraged” to make their own assessment by reviewing the parties’ briefs filed and listening to the oral argument.

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