Today the Supreme Court released its decision in Murthy v. Missouri, the case that challenged the federal government’s massive censorship operation, in which it either colluded with or coerced, depending on your point of view, social media platforms. The decision was anticlimactic. The six-justice majority declined to reach the merits of the case, on the ground that the plaintiffs lacked standing to sue. The majority decision was by Justice Barrett, while Justice Alito filed a dissenting opinion in which Justices Thomas and Gorsuch concurred.
I am not an expert on the rather arcane rules of standing. In fact, in my long career doing corporate litigation, I don’t think I ever had a case in which standing was an issue. So I won’t offer any technical comment on the majority decision. While the merits of the plaintiffs’ censorship claims are theoretically left for another day, I am not sure how that day will ever come. If these plaintiffs, a group that included among others Dr. Jay Bhattacharya, don’t have standing, I am not sure who ever will. And the Court rejected the theory that states could sue on behalf of their citizens, who have a right to receive information free of unconstitutional censorship.
It is hard to escape the sense that the majority failed to appreciate the profound threat posed by the phenomenon at issue here: government agencies, including the White House, collaborating with/organizing/inducing/leaning on/coercing–take your pick–the private companies that control a large percentage of public communications, to suppress the dissemination of facts and expression of opinions contrary to the policies of the current administration in Washington. While this sort of collaboration between the regime and private companies in suppressing speech is a familiar phenomenon under fascist and Communist governments, nothing like this kind of censorship has ever been attempted, in our country, before.
Justice Alito wrote in his dissent:
This case involves what the District Court termed “a far-reaching and widespread censorship campaign” conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID–19 on social media. Missouri v. Biden, 680 F. Supp. 3d 630, 729 (WD La. 2023). Victims of the campaign perceived by the lower courts brought this action to ensure that the Government did not continue to coerce social media platforms to suppress speech. Among these victims were two States, whose public health officials were hampered in their ability to share their expertise with state residents; distinguished professors of medicine at Stanford and Harvard; a professor of psychiatry at the University of California, Irvine School of Medicine; the owner and operator of a news website; and Jill Hines, the director of a consumer and human rights advocacy organization. All these victims simply wanted to speak out on a question of the utmost public importance.
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If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years.
I think that is an understatement. No doubt, as a result of the Court’s passing on the merits of plaintiffs’ claims, the federal censorship dial will be turned up to 11. And just in time for the presidential election, too. I am afraid that both the Biden Administration and the liberals who run all the tech platforms except Twitter will take the Court’s decision as carte blanche to censor any information identified by the Biden Administration that might tend to lessen Joe Biden’s chances of re-election.
