'Free speech is dead': SCOTUS pass on federal pressure to censor spurs political, legal scrambling

The high court's decision was its second high-profile ruling this month decided on standing – a plaintiff's legal right to make a claim.

Published: June 26, 2024 11:09pm

"Free speech in America, for the moment, is dead." But whose fault is it?

The Supreme Court's 6-3 reversal Wednesday of a preliminary injunction against several federal agencies and officials for "coerc[ing] or significantly encourag[ing] a platform’s content-moderation decisions" concluded that neither states nor censored users have legal standing to sue and is spurring political and legal maneuvering to protect Americans' online speech.

It's the second high-profile ruling this month decided on standing, after a unanimous SCOTUS shocked pro-life activists by suggesting courts were powerless to review the Food and Drug Administration's changes to abortion-pill access because no one could demonstrate legal injury.

House Judiciary Committee Chairman Jim Jordan, R-Ohio, quickly promised to keep pushing for legislative reforms including the Censorship Accountability Act – which has not moved since committee passage in February – to stop the "unconstitutional censorship-industrial complex" as Murthy v. Missouri returns to trial court.

"Today’s ruling does not dispute" that the "deep state pressured and coerced social media companies to take down truthful speech simply because it was conservative," Missouri GOP Attorney General Andrew Bailey wrote on the social media platform X.

"We are going back to the district court to obtain more discovery in order to root out [President] Joe Biden’s vast censorship enterprise once and for all," he said. "We've only just begun."

Louisiana GOP Attorney General Liz Murrill blasted the majority for "wav[ing] off the worst government coercion scheme in history" but promised to "keep fighting to defend and protect our rights."

Stanford Medical School professor Jay Bhattacharya, one of three censored plaintiffs who are doctors, wrote on X: "Congress will now need to act to enforce the Constitution" since SCOTUS accepts the "near-monarchical" power President Biden's lawyers claim he has over social media."

"This now also becomes a key issue in the upcoming election," and "voters should ask every candidate for office down to dog catcher where they stand on the power of government to censor," he also said. "Let's make it a political liability to favor censorship."

He also wrote: "Free speech in America, for the the moment is dead."

Some critics of federal pressure to censor purported misinformation on COVID-19, elections, Hunter Biden's laptop and other hot-button issues suggested the case was a long shot to begin with or the ruling's damage to free speech has been vastly overstated.

Former New York Times drug industry reporter Alex Berenson said his lawsuit alleging the feds coerced Twitter to de-platform him over his COVID vaccine skepticism is the "last case left" and was actually strengthened by the high court's ruling.

"Standing is particularized, and I have the particulars," Berenson wrote on X, citing documents turned over by Twitter to settle his earlier lawsuit and files turned over by X owner Elon Musk, most recently Twitter's perception of backdoor White House threats through President Biden's former adviser Andy Slavitt and President Trump's former FDA Commissioner Scott Gottlieb.

He said what he's posted is "only part 1" of what Berenson calls "The Pfizer/White House Files," so named because Gottlieb omitted his Pfizer board membership while invoking his status as former FDA commissioner to Twitter.

"The answer to the Murthy problem is to reform the administrative state" because it's "tricky" to devise an injunction against such government behavior, veteran First Amendment lawyer Casey Mattox, known for litigating religious and academic freedom cases, wrote on X.

"But this kind of bureaucratic power shouldn't be in the executive branch in the first place," he wrote. "There's no substitute for ending the power of random bureaucrats to be the change they want to see in the world."

"We don't know much more than before about when government pressure becomes unconstitutionally coercive" or whether the First Amendment "forbids even noncoercive government 'entangle[ment],'" wrote UCLA law professor Eugene Volokh, himself a plaintiff in a First Amendment challenge to New York's now-blocked social media "hateful conduct" law.

The ruling gave "very little new about First Amendment law here," according to Volokh, who is also co-counsel to the National Rifle Association in the Vullo case, in which the unanimous high court reinstated a lawsuit against New York's former financial services superintendent for "encourag[ing]" regulated entities to stop providing NRA-endorsed insurance programs.

"The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics," Justice Amy Coney Barrett wrote for the majority, split between Republican and Democratic appointees.

"On this record, it appears that the frequent, intense communications that took place in 2021 had considerably subsided by 2022" and officials "only asked for information about the most popular vaccine-related posts" in the months before the suit, the opinion reads.

Barrett said the plaintiffs haven't shown a risk of future censorship "traceable" to the feds and "platforms remain free to enforce, or not to enforce," moderation policies "tainted by initial governmental coercion."

Missouri, Louisiana, Gateway Pundit publisher Jim Hoft and doctors Bhattacharya, Aaron Kheriaty and Martin Kulldorff have no case, while "most of the lines" drawn by Health Freedom Louisiana activist Jill Hines are "tenuous" because "Facebook was targeting her pages before almost all of its communications with the White House and the CDC," the opinion says.

Evidence shows platforms had "independent incentives to moderate content and often exercised their own judgment" even though the feds "played a role in at least some" of those choices, and they kept it up after federal pressure waned, Barrett wrote.

What's missing is that "a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff ’s speech on that topic," the opinion says. "Heeding these conditions is critically important in a sprawling suit like this one."

Missing from Barrett's opinion, however, is any mention of the last month's ruling in the coercive-speech case, Vullo. Justice Samuel Alito, who focused on Hines as the key to Murthy in oral argument, emphasized that omission in his dissent.

"What the officials did in this case was more subtle than the ham-handed censorship" against the NRA by Maria Vullo "but it was no less coercive," Alito wrote, joined by justices Neil Gorsuch and Clarence Thomas.

"And because of the perpetrators’ high positions" in the federal government, "it was even more dangerous," the dissent says. Officials reading the two decisions together "will get the message. If a coercive campaign is carried out with enough sophistication, it may get by."

Referring 23 times to specific evidence, Alito argues Hines was "indisputably injured" when Facebook "repeatedly yielded" to officials who "continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes," even for posts "they did not claim to be literally false but nevertheless wanted obscured."

The majority and dissent argue with each other over whether Hines' failure to be more specific in her allegations dooms the case. 

When told the dissent "draws links that Hines herself has not set forth, often based on injuries that Hines never claimed," Alito retorted "what theory makes more sense – that a user falling within Facebook’s amended policies was censored under those policies or that something else caused her injury?"

The majority "shirks" its duty to "tackle the free speech issue that the case presents," thus providing "an attractive model for future officials who want to control what the people say, hear, and think," Alito said.

"The Supreme Court, which is not a fact finder in these cases, just determined against all evidence that the Federal Government will not be held accountable for the natural consequences of its speech squelching actions," New Civil Liberties Alliance senior litigation counsel John Vecchione, who represents the censored doctors, wrote on X.

"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," he said.

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