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In a scathing dissent, Justice Gorsuch warned that the government’s involvement in silencing dissenting speech “was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.”
The Supreme Court has lifted the injunction that had stopped members of the Biden administration from contacting social media companies in an organized censorship campaign.
Earlier today, the Supreme Court ruled that the plaintiffs in the case of Murthy v. Missouri, formerly Missouri v. Biden, do not have standing to bring a suit against government officials who coerced social media companies to censor content.
In a 6-3 decision, authored by Justice Amy Coney Barrett, the justices ruled that the states of Missouri and Louisiana as well as a web-based news organization, a healthcare advocate, and three medical doctors had not demonstrated that the government had injured them.
She wrote,
“We begin—and end—with standing. 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 involved various government officials who were in frequent contact with social media companies demanding that they censor content on issues such as COVID-19, the Hunter Biden laptop story, and election integrity. Much of the content the administration deemed to be dangerous disinformation was actually shown to be true.
If social media companies did not remove content quickly enough to suit government officials, they would contact the companies directly, often with berating or threatening messages.
The censorship efforts were so vast that U.S. District Court Judge Terry Doughty ruled that the government’s actions were arguably “the most massive attack against free speech in United States’ history.”
He also ruled that “the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
Doughty granted an injunction that stopped officials from contacting social media companies in order to coerce them to censor content.
That ruling was appealed to the U.S. Court of Appeals for the Fifth Circuit, which removed many of the officials blocked by the injunction but came to the same conclusion as Doughty: The federal government coerced social media companies to censor speech it didn’t favor.
The Fifth Circuit found that the government “exercised meaningful control” over the platforms’ content moderation.
“In doing so, the officials ensured that any moderation decisions were not made in accordance with independent judgments guided by independent standards….Instead, they were encouraged by the officials’ imposed standards,” they wrote.
“In sum, we find that the White House officials, in conjunction with the Surgeon General’s office, coerced and significantly encouraged the platforms to moderate content. As a result, the platforms’ actions ‘must in law be deemed to be that of the State.’”
The Fifth Circuit later added the Cybersecurity and Infrastructure Security Agency (CISA) to the injunction, noting that the agency pressured social media companies to adopt its suggested restrictive content policies and told social media companies what content to censor.
Despite the lower courts’ clear findings that the government was the one making the censorship decisions rather than the companies due to coercion, Barrett and Justices Kavanaugh, Roberts, Sotomayor, Brown-Jackson, and Kagan ruled that there was no coercion.
Barrett wrote that the plaintiffs never established that it was the White House that was pressuring the social media companies.
During oral arguments, Kagan claimed the actions of the government were common and harmless. “I’ve had some experience encouraging press to suppress their own speech. ‘You just wrote a bad editorial. Here are the five reasons you shouldn’t write another one’….This happens literally thousands of times a day in the federal government,” she claimed.
In a blistering dissent, Justice Gorsuch, joined by Justices Alito and Thomas, claimed that the Court had neglected its responsibility.
Though “the record is vast” regarding all of the plaintiffs, he focused his argument on the actions of a few federal officials in the White House and the Surgeon General’s office, one platform, Facebook, and one plaintiff, Jill Hines, a homeschooling mother and co-director of Health Freedom Louisiana, whose posts on COVID-19 were repeatedly censored.
Gorsuch wrote,
“This evidence was more than sufficient to establish Hines’s standing to sue…and we are obligated to tackle the free speech issue that the case presents. 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. That is regrettable.
What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in 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. 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.”
Jonathan Turley, a free speech advocate and Shapiro Chair of Public Interest Law at George Washington University, responded to the ruling by saying, “You have one of the largest censorship systems in our history, if not the largest. It’s been called ‘Orwellian’ by lower court judges. And what the Court is saying is, ‘We won’t hear you on this issue because you’re not the right litigants.’”
He added,
“One of the things that many of us have been arguing, for years, is that the government is engaging in censorship by surrogate. I testified about this in Congress, that they have made a mockery of the limits of the First Amendment by doing indirectly what they’re barred from doing directly. They’re using academic and corporate allies to bar and cancel and blacklist critics on a variety of different subjects.”
Missouri Attorney General Andrew Bailey, the lead plaintiff in the case, said in a post on X that he will continue fighting the federal government’s attempts to censor speech, writing,
“The record is clear: the deep state pressured and coerced social media companies to take down truthful speech simply because it was conservative. Today’s ruling does not dispute that. My rallying cry to disappointed Americans is this: Missouri is not done,” Bailey insisted, explaining that he will file a new lawsuit in U.S. district court and continue to engage in discovery to root out the federal government’s “vast censorship enterprise once and for all.”
The seriousness of this moment cannot be understated. The federal government engaged in the coercion of companies, demanding that they censor content that the government deemed as misinformation.
In other words, it directly targeted Americans with viewpoints federal officials opposed.
And now the Supreme Court has effectively given an increasingly tyrannical federal government permission to continue doing it without any fear.
For example, the federal government demanded that Facebook and other social media platforms take down all articles about the Hunter Biden laptop (and completely lock the account of the newspaper that broke the story so it couldn’t post any articles).
The government demanded that social media platforms take down any posts that stated that facemasks were ineffective. The government demanded that posts saying that the vaccines were ineffective or unsafe be removed. The government demanded that posts about the harms of lockdowns be removed.
And yet, all of those things were actually true.
So, in other words, it was the government that was spreading misinformation and disinformation.
The government claimed the Hunter Biden laptop story was Russian disinformation, but that was a lie.
The government claimed masks were effective at stopping transmission of Covid even though they already knew that masks were not effective.
The government said that people who received the vaccine could not transmit or catch COVID. That was also untrue.
The government said the vaccines were safe and posed no risks. That was a lie.
The government hid the very real public health dangers of lockdowns, and now Americans, especially children and teenagers, are suffering as a result.
The Constitution was written to rein in government power and ensure that the rights of individuals were protected. It isn’t the individual who poses a threat to liberty, it is the government.
People can say stupid or crazy or false or even hateful information; that’s the whole point of free speech. The real threat is a government that demands uniformity of thought and has the power to control what people can say or read or even think.
That is what communist and fascist dictatorships do, not constitutional republics.
Individuals have no direct power outside of voting for their representatives while an unchecked government has unlimited power. The framers of the Constitution realized the truth that man, with his penchant for evil and his avarice for control and power, would abuse that power when allowed.
Americans don’t need to be protected from the free flow of information; they need to be protected from the government.
Even if the information being spread had been false, the cure cannot be worse than the disease itself. Granting government the power to censor its citizens is far worse than allowing people to say things that aren’t true.
Gorsuch is right: The six justices shirked their responsibility, and the rest of us will wish that they hadn’t.
If this issue isn’t addressed quickly and this government is allowed to resume its ability to censor and silence any dissent to its approved narratives, the First Amendment will be all but dead.
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