The Significance of the Dissenting Judgments in the Free Speech Case “Murthy v. Missouri,” By Charles Taylor (Florida)
There has been much commentary from the US freedom movement about the decision by the US Supreme Court in Murthy v. Missouri, the internet freedom case. Did the government have the right to violate the 1st Amendment right to free speech by putting pressure on social media corporations to silence criticism of the Covid mandates and vax? The majority of the Court backed censorship, but there were strong dissenting judgments by three conservative judges against the 5 liberals and one Trump-appointed conservative.
While the case has been discussed previously at the blog, one point that many have passed over is that the Court avoided the substantive issues by arguing that standing was missing in the case, as the plaintiffs did not show evidence to be materially affected in the matter. It is a common cowardly procedural way of avoiding difficult legal issues. But standing was not an issue for the lower courts.
As discussed below, the next free speech case to come up is Kennedy et al. v. Biden et al. by Children's Health Defense (CHD) and its founder and chairman and presidential candidate, Robert F. Kennedy Jr. Here the issue of standing is as clear as it could possibly be, as there is strong evidence that Robert Kennedy was censored in the course of both his political activities criticising the Covid mandates and vaccination policy. This body of evidence has been covered in Kennedy's books and it is likely that the standing issue will be overcome. Then the devastating free speech arguments given by the dissenting judges can be remade.
Hence, the situation for free speech is not a grim as many conservatives, feeling the depression after a defeat, said.
"When the U.S. Supreme Court on Wednesday sided with the Biden administration in a landmark censorship case alleging key administration officials violated the First Amendment by colluding with social media platforms to censor content on COVID-19 and other topics, three Supreme Court justices dissented.
Wednesday's Supreme Court decision in Murthy v. Missouri reversed two lower court rulings in favor of granting a preliminary injunction prohibiting contact between the White House and social media until the lawsuit is resolved. The 6-3 decision held that the plaintiffs — two states and five social media users — didn't have legal standing to bring their case.
On Feb. 14, Judge Terry A. Doughty granted a preliminary injunction in a similar lawsuit — Kennedy et al. v. Biden et al. — brought by Children's Health Defense (CHD) and its founder and chairman on leave, Robert F. Kennedy Jr.
The dissenting justices' arguments in Murthy v. Missouri could come into play in Kennedy v. Biden, CHD CEO Mary Holland told The Defender earlier this week.
"We will continue with Kennedy v. Biden, a separate lawsuit in the Western District of Louisiana, where we believe there is no issue regarding lack of standing for Robert F. Kennedy, Jr. or Children's Health Defense, who were directly and traceably censored and continue to be heavily censored.
"We expect this case to move forward even if standing remains an issue for the Missouri v. Biden plaintiffs."
Plaintiffs 'simply wanted to speak out'
In his dissenting opinion in Murthy v. Missouri, Supreme Court Justice Samuel A. Alito Jr. — who was joined in his dissent by Justices Clarence Thomas and Neil M. Gorsuch — said the Biden administration's censorship was "blatantly unconstitutional, and the country may come to regret the Court's failure to say so."
While the other six justices held that none of the plaintiffs in Murthy v. Missouri showed enough evidence to have standing, Alito wrote that plaintiff Jill Hines had "more than sufficient" evidence to establish her standing to sue.
Given Hines' standing, Alito said, "We are obligated to tackle the free speech issue that the case presents."
"The Court, however," he said, "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."
Alito highlighted basic information uncovered by the lower courts in the Murthy v. Missouri case.
"This case," he wrote, "involves what the District Court termed 'a far-reaching and widespread censorship campaign' conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID-19 on social media."
The plaintiffs were "victims of the campaign" who filed the lawsuit "to ensure that the Government did not continue to coerce social media platforms to suppress speech."
They included two states — Missouri and Louisiana — whose public health officials were "hampered in their ability to share their expertise with state residents," distinguished professors of medicine at Stanford and Harvard; a psychiatry professor at the University of California, Irvine, School of Medicine; a news website owner and operator; and Jill Hines, the director of a consumer and human rights advocacy organization.
"All these victims simply wanted to speak out on a question of the utmost public importance," Alito said.
The U.S. District Court for the Western District of Louisiana Monroe Division in July 2023 issued a preliminary injunction to protect the plaintiff's right to speak out, he said.
The injunction was later upheld by the 5th Circuit U.S. Court of Appeals, which concluded federal officials likely violated the First Amendment by coercing social media platforms to censor certain posts.
"If the lower courts' assessment of the voluminous record is correct," Alito said, "this is one of the most important free speech cases to reach this Court in years."
'Government officials may not coerce private entities to suppress speech'
Alito acknowledged that private entities, such as newspapers and social media companies, can choose whether to publish or not publish someone's speech. "But government officials may not coerce private entities to suppress speech … and that is what happened in this case."
He cited a recent Supreme Court decision involving the National Rifle Association (NRA) — National Rifle Association of America v. Vullo — to support his point. The NRA alleged that Maria Vullo, former superintendent of the New York Department of Financial Services (DFS), violated the NRA's First Amendment rights by pressuring regulated entities to disassociate from the NRA and other gun-promotion advocacy groups.
The Supreme Court held that the NRA "plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA's gun-promotion advocacy."
According to Alito, the "vast" record for Murthy v. Missouri showed that the federal government pressured social media companies to comply with its wishes to suppress views and ideas — such as the COVID-19 lab-leak theory — that they disfavored.
In 2021 and 2022, Alito said, numerous high-level government officials "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," he said, "Facebook repeatedly yielded."
This resulted in Hines being "indisputably injured" — and she was threatened with more of the same injury when she sued.
"These past and threatened future injuries were caused by and traceable to censorship that the officials coerced," Alito wrote, "and the injunctive relief she sought was an available and suitable remedy."
'Permissible persuasion' or 'unconstitutional coercion'?
For Alito and his fellow dissenting justices, a key issue centered around whether the government's actions constituted "permissible persuasion" or "unconstitutional coercion."
Alito outlined three criteria for making the assessment, based on the example of the NRA v. Vullo case, and concluded that the White House had engaged in coercion that violated the U.S. Constitution.
First, the White House officials wielded huge authority, which put them in a potentially coercive position over social media companies like Facebook.
Second, their communications with Facebook were not mere questions or requests but were "virtual demands," Alito said.
And third, Facebook's "quavering responses" to the White House's demands showed that the company 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," he said.
Supreme Court's decision sends a message
The White House officials' coercion in this case was "more subtle than the ham-handed censorship found to be unconstitutional in Vullo," Alito wrote, "but it was no less coercive."
"And because of the perpetrators' high positions," he added, "it was even more dangerous."
Alito called the majority's decision "regrettable" because it sends government officials the message that if "a coercive campaign is carried out with enough sophistication, it may get by."
"That is not a message this Court should send," he said."
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