Supremely Wrong: Court Ruling on Murthy Misses Point Entirely

The United States Supreme Court ruled today, in a 6 to 3 decision, that the plaintiffs in the most important free speech case in decades did not have standing to ask for preliminary injunctive relief.

That is wrong.

In her majority opinion, Justice Amy Coney Barrett bent over sideways to avoid judging the case on its merits – the allegation is that various and sundry government agencies coerced private social media companies to remove posts and tweets and such they did not like – and focused instead on whether or not the plaintiffs had the right, or standing, to ask for and be granted such relief.

The plaintiffs, essentially, had their content throttled or removed from social media platforms at the behest of the government because they did not follow the government line on the pandemic response and election security, daring to question things like social distancing – even Dr. Anthony Fauci has admitted they just made that up – and how secure – or unsecure – a “vote-be-mail” election could possibly be.

The request before the court was to allow an injunction against a number of government agencies that barred improper communication with the social media platforms. The question of whether those agencies did in fact do that – essentially violating the First Amendment rights of the plaintiffs – does not appear at issue. As Justice Samuel Alito (joined in opposition to the ruling by Justices Clarence Thomas and Neil Gorsuch) said in his blistering dissent, that unquestionably happened.

The case, known as Murthy V. Missouri, involves two states and a number of private plaintiffs, all claiming that they were improperly censored – and thus damaged – by federal agencies and/or the dubious “cut out” front groups they created.  Alito focused on one plaintiff – Jill Hines, who ran a Louisiana health-related (read pandemic response criticism) that was consistently degraded by Facebook after calls and pronouncements from the White House –  in his dissent, noting that she unquestionably had standing (even Barrett admitted that plaintiff was closest, as it were,) especially in light of the fact the government itself admitted the plaintiff had been damaged.

In today’s ruling, “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,” wrote Alito. “That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional (in a separate case,) but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision … 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.”

Barrett wrote that, while she was not opining on the merits of the case, the plaintiffs could not show standing to receive a preliminary injunction. Such an injunction would have immediately barred government abuse going forward, but Barrett held, basically, that just because it did happen doesn’t mean it will happen again and therefore the plaintiffs are not entitled to preliminary (or prospective) relief.

As part of her reasoning, Barrett said that social media platforms did act on their own, at least on occasion, as part of their standard “content moderation” efforts and there was little or no “traceability” back to specific government individuals showing immediate and direct correlation between a government compliant and a private company action.

Wrong.

First, in the Hines matter, even Barrett noted there was an element of traceability (that was enough for Alito to say she unquestionably had standing to seek relief and, therefore, the case should have been decided on its merits.)

Second, companies like Facebook, which in the past have paid huge fines to the government, are in a very precarious position vis a vis federal regulation.  From  “Section 230” protections – a government code that limits their exposure to civil liability when deciding to drop content – to ever-growing threats of further government intervention and potential anti-trust actions, social media companies are internally incentivized to comply with government requests.  

In other words, it is not at all a coincidence that a very large percentage of social media execs are “former” government employees and elected officials.

“In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands,” Alito wrote.  “And Facebook’s quavering responses to those demands show that it felt a strong need to yield. For these reasons, I would hold that Hines is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.”

In her ruling, Barrett made other significant errors. First, she referred to the “Election Integrity Partnership” (EIP) as a “private entity,” and therefore able to make requests of social media companies.

In fact, the EIP (a group of academic “misinformation specialists”)  was morphed into existence by the Department of Homeland Security, specifically its Cybersecurity and Infrastructure Security Agency, typically known as CISA. The EIP was funded by the government, many of its workers were former (though for many, ‘former’ may be a stretch) federal security agency employees, and the EIP specifically and consistently did the bidding of CISA when asked.

For Barrett to call the EIP a “private entity” shows a complete (intentional?) misunderstanding of the legal landscape and the reality of censorship-industrial complex.

The EIP and other government sponsored groups that make up the censorship-industrial complex are as much independent from the government and the deep state as a foot is independent from a leg.

Barrett also claimed that similar government’s activities seemed to have lessened in the recent past, making the need for the going-forward injunction unnecessary.  

Such a statement is impossible to prove as being true or false – especially after today – but making the assumption that it is even vaguely true, Barrett again misses the mark.  If the government is censoring less now than it did two years ago it is because of the massive amount of public attention that has been drawn to the despicable practice by the press and, to be blunt, this very lawsuit.

CISA, etc. did not wake up one morning 18 months ago and say ‘hey we better cool it on this” because they suddenly realized they were most likely violating the constitution; they did so because of the public – and Congressional – pressure.

And now with at least the legal pressure lessened (and an election coming up,) to believe that the activities will not increase is naïve to the point of childish – that’s why this future, going forward, prospective injunction was so important.

Critics of the decision were loud and voluminous. Appearing on Fox News, legal commentator Jonathan Turley said that “standing issues” are often “used to block meritorious claims” and that the government’s “censorship by surrogate makes a mockery of the First Amendment.”

Dr. Jay Bhattacharya, an internationally recognized Stanford medical professor, is one of the private plaintiffs in the suit. Bhattacharya is one of the co-authors of the Great Barrington Declaration, which called for a more targeted and rational response to the pandemic response.  When it comes to standing, he points directly to an email from then National Institutes of Health Chief (Tony Fauci’s sort-of boss) Francis Collins, calling on his fellow government employees to engage in a “devastating takedown” of Bhattacharyya and the Declaration itself.

Barrett wrote that “Enjoining the Government defendants, therefore, is unlikely to affect the platforms’ content-moderation decisions,” an opinion  Bhattacharya was having none of.

“Unlikely to continue to be damaged?” asked Bhattacharya. “How do we know that? And now because of this ruling we have no legal protection from it happening. The court ruled that you can censor until you get caught and even then there will be no penalty.”

Because of the focus on standing, Bhattacharya likened today’s ruling to giving the go-ahead to “broadly censor ideas” as long as you make sure not to traceably censor a specific individual.

A disappointed Bhattacharya has hopes for the future – the case was, again, not decided on its merits and is simply remanded without the injunction back to federal district court in Louisiana – but thinks electeds need to pass laws to stop the censorship.

“At this point, Congress has to act and this needs to be an election issue,” Bhattacharya said.

John Vecchione, New Civil Liberties Alliance Senior Litigation Counsel and the lawyer for four of the five private individuals (including Hines and Bhattacharya) said today’s ruling was “not in accordance with the facts” of the situation.

“There is a level of unreality about this opinion,” Said Vecchione, adding that it reads like a “roadmap for government censors.”

While some in the media have tried to identify this case as having “right-wing” support, Vecchione noted it was originally filed while Donald Trump was president and therefore goes far beyond partisan politics to the heart of the rights of American citizens.

The suit, as noted, goes back to district court and Vecchione says they will continue to gather facts and depositions and even more specific instances of “traceability” – he says they already have enough, but Barrett did not agree – and keep working it through the courts.  He said he expects to be back at the Supreme Court sometime in – hopefully – the near future.

“Meanwhile, any government agency, any administration can censor any message they don’t like,” Vecchione said.

And no matter a person’s politics, that is just plain wrong.

Or as Justice Alito wrote:  

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”

Here is the SCOTUS decision in Murthy V. Missouri.