The Patriot Post® · Supreme Court Shirks Protecting Free Speech
The U.S. Supreme Court, in a potentially landmark case with significant ramifications for Americans’ First Amendment right to free speech, effectively chickened out and avoided the question altogether. Instead, on Wednesday, by a 6-3 decision, the justices decided that the plaintiffs — wait for it — had no standing and therefore dismissed the case.
“We begin — and end — with standing,” reads the majority opinion written by Justice Amy Coney Barrett. “At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute.”
The case in question was Murthy v. Missouri, in which the state of Louisiana had also joined to sue the Biden administration for violating the First Amendment when federal agencies pressured social media companies to censor speech that they deemed inconvenient or unhelpful.
Constitutional scholar Jonathan Turley argues that the administration “made a mockery of the limits of the First Amendment.” And the Supreme Court let Biden get away with it. In fact, the administration will no doubt take this as a license for even more censorship.
What is particularly frustrating about this ruling is that the High Court took this case after the Fifth Circuit Court of Appeals had ruled last fall that the federal government was guilty of infringing on Americans’ First Amendment rights. Ironically, Barrett seemingly recognized this but then argued, “The Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.” She also argued that “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct” and “continued to exercise their independent judgment,” which largely negated the plaintiffs’ argument.
In other words, since every decision to censor speech on these social media platforms was not due to pressure from the government, since these companies occasionally engaged in censorship of their own volition, one cannot charge the government with violating the First Amendment.
While it appears the Court’s majority had an opinion regarding the actual merits of the case, they chose to avoid it, likely because such a view would open up a can of worms regarding government infringement of free speech.
The Court’s minority, which included Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, offered a deserved and scathing dissent. Writing for the trio, Alito called out his colleagues for effectively shirking their duty to protect constitutional rights. “What the officials did in this case,” warned Alito, “was more subtle than the ham-handed censorship found to be unconstitutional in [National Rifle Association of America v.] Vullo, 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.”
He then delved into the whole issue of coercion, which the Court’s majority sought to downplay. “If a coercive campaign is carried out with enough sophistication, it may get by,” Alito said. “That is not a message this Court should send.” Indeed. He illustrated by pointing to publicly available reactions from Facebook personnel. Facebook’s reactions “were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions,” Alito noted. “Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster.”
That doesn’t mean Facebook isn’t ideologically aligned with the Biden administration, only that it responded as if it had little choice.
The New Civil Liberties Alliance, which represented three doctors who were plaintiffs in the case, also blasted the decision. NCLA Senior Litigation Counsel John Vecchione called it “a bad day for the First Amendment” while noting, “The Government can press third parties to silence you, but the Supreme Court will not find you have standing to complain about it absent them referring to you by name apparently.”
This is not the only social media censorship case on the High Court’s docket. However, this outcome doesn’t inspire confidence that the Court will defend our First Amendment against an oppressive government and like-minded Big Tech entities.
(Updated)