On the surface, the SCOTUS ruling in Murthy v. Missouri doesn’t look that interesting – until you look at what the case was actually about.

This case dealt specifically with Surgeon General Vivek Murthy (as a stand-in for the administration), and the pressure applied by the Biden administration to social media platforms to censor “disinformation” when it came to COVID-19, and the administration’s communications with those social media companies. Amy Howe at SCOTUSblog summed it up this way:

The case was filed in May 2022 in federal court in Louisiana by two states with Republican attorneys general, Missouri and Louisiana, as well as five individual social media users, including epidemiologists and physicians. The individual challengers contend that their social media posts on platforms such as Facebook, YouTube, and X (formerly known as Twitter), and in particular posts related to COVID-19 and the 2020 election, were removed or downgraded, at the government’s direction. Missouri and Louisiana claim that both they and their residents have been harmed by the social media platforms’ suppression or censorship of their speech.

On July 4, 2023, U.S. District Judge Terry Doughty agreed with the challengers that federal government officials had violated the First Amendment by “coercing” or “significantly encouraging” the content moderation decisions of social media platforms, thereby transforming those decisions into actions by the government.

Doughty issued an order that limited communications between the White House and several other government agencies with social media companies about virtually all content.

The Biden administration went to the 5th Circuit, which largely upheld Doughty’s order. It characterized the conduct at the center of the case as a “coordinated campaign” “orchestrated by federal officials that jeopardized a fundamental aspect of American life.” But the court of appeals narrowed Doughty’s order limiting communication to a smaller group of officials, including the White House, the Surgeon General, the CDC, and the FBI.

The Biden administration appealed next to the Supreme Court on Sept. 14, asking the justices to freeze Doughty’s order. More than a month later, the justices granted that request and agreed to hear oral argument on the merits of the dispute.

Anyone who has looked at any of the “Twitter Files” documents that were released KNOWS that the federal government was working hand-in-glove with the old regime at Twitter, and at Facebook, to censor or downgrade certain people. The question that SCOTUS decided to focus on was not the harm done, though – it was all about “standing.” And in this case, in a 6-3 ruling, the SCOTUS majority determined that the states did not have standing to sue, and that the individuals involved could not prove that they would be harmed in the future.

The majority held that the plaintiffs did not establish Article III standing. The plaintiffs requested “forward-looking relief.” Therefore, they had to prove they would face “a real and immediate threat of repeated injury.”

They also rejected the plaintiffs’ arguments because social media platforms censored material before communications with the Biden administration and still do after communications ceased to exist, so it’s all good.

“Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant,” wrote Barrett. “Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden. On the record in this case, that is a tall order.”

…Justice Alito speaks for many in the free speech community in writing in dissent "this is one of the most important free speech cases to reach this Court in years." The court just took an off ramp.

— Jonathan Turley (@JonathanTurley) June 26, 2024

Justice Amy Coney Barrett wrote the majority opinion. The three dissenters were Justices Alito, Thomas, and Gorsuch, with Alito writing the dissent.

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. Freedom of speech serves many valuable purposes, but its most important role is protection of speech that is essential to democratic self-government, see Snyder v. Phelps, 562 U. S. 443, 451–452 (2011), and speech that advances humanity’s store of knowledge, thought, and expression in fields such as science, medicine, history, the social sciences, philosophy, and the arts, see United States v. Alvarez, 567 U. S. 709, 751 (2012) (ALITO, J., dissenting).

The speech at issue falls squarely into those categories. It concerns the COVID–19 virus, which has killed more than a million Americans. Our country’s response to the COVID–19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our dedication to a free marketplace of ideas demands that dissenting views on such matters be allowed. I assume that a fair portion of what social media users had to say about COVID–19 and the pandemic was of little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed. That is what inevitably happens when entry to the marketplace of ideas is restricted.

Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, see National Rifle Association of America v. Vullo, 602 U. S. 175 (2024), and that is what happened in this case.

For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit. These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992), and consequently, 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.

To put it bluntly, the SCOTUS majority punted because they didn’t want to get into the nitty-gritty details of social media platforms, and failed to recognize that when it is the government mounting a pressure campaign under implied threat, that IS a First Amendment free speech issue. Alito, Thomas, and Gorsuch are at least clear-eyed about what the Court failed to do in this case.

Professor Jonathan Turley, who has a new book out on free speech and has been making the rounds to promote his book, put it this way in a recent column:

In my book “The Indispensable Right: Free Speech in an Age of Rage,” released last week, I discuss our long struggle with free speech as a nation. It is an unvarnished history with powerful stories of our heroes and villains in the struggle to define what Justice Louis Brandeis called our “indispensable right.”

One of the greatest villains in that history was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents – including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.

We are now seeing what is arguably the most dangerous anti-free speech movement in our history. President Joe Biden is, in my view, the most anti-free speech president since Adams. Under his administration, we have seen a massive censorship system funded and directed by the government.

A federal judge described the system as “Orwellian” in its scope and impact.

Biden has repeatedly called for greater censorship and accused social media companies of “killing people” by not silencing more dissenting voices. Other Democrats such as Sen. Elizabeth Warren of Massachusetts have pushed for restrictions on “unacceptable” speech.

The Biden administration seeks to censor even true statements as disinformation.

For example, I testified before Congress last year on how Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.”

The left has picked up the cudgels of censorship and blacklisting once used against them. During the McCarthy period, liberals were called “communist sympathizers.” Now, conservative justices are called “insurrectionist sympathizers.”

In dodging the central question using the fig leaf of “standing,” SCOTUS has failed to address the Deep State abuse that has become obvious to those paying attention. Eventually, the Court is going to have to address free speech issues on social media platforms, and the pressure that the government has used to coerce those platforms. But today is not that day, apparently. And the Justice Department that has been weaponized to shut down anyone who dares contradict the preferred narratives of the Deep State and the Biden administration will continue to exert its influence, unchecked by the Court.

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