Standing…The Myth, The Legend, The Lie

There have been a myriad of articles in the past couple of days regarding the United States Supreme Court’s (“SCOTUS”) controversial decision in Murthy v. Missouri (formerly known as Missouri v. Biden) which the Court published on June 26. Because my time is so limited, I don’t waste it reading what some call “fake news,” which I assuredly refer to as “propaganda.” Instead, I read more reliable news sources, one of my favorites of which is Brownstone Institute.

(You can call me biased if you like [yes, I am a Fellow at Brownstone as well as a published author there], but it is of no matter because the site speaks for itself on its robust, daily coverage of many things important. Give it a look-see here.) 

Anyway, regarding the Murthy v. Missouri aftermath, I’m hearing a lot of confusion about the ruling and its implications on Americans’ everyday lives, so I’m going to explain it here to help clear up the misconceptions that abound. Much of the confusion stems from the Court’s discreditable use of the myth, the legend, the lie of standing as their reasoning in deciding Murthy. More on standing later, but first, a bit of history on this case is needed. 

The Case

Originally known as Missouri v. Biden, the lawsuit was brought in 2022 by two states (Missouri and Louisiana) and some intrepid individuals, a couple of whom are colleagues of mine including Dr. Jay Bhattacharya (a Stanford University professor), Dr. Aaron Kheriaty, Dr. Martin Kulldorff (of Harvard Medical School), The Gateway Pundit’s Jim Hoft, and a health activist named Jill Hines. The essence of the lawsuit is that the plaintiffs are challenging the Biden Administration’s blatant obstruction of their First Amendment right to freedom of speech. They argue that the federal government colluded with Big Tech companies such as Facebook, Twitter, etc., during the pandemic to silence those who were questioning the government agenda, their protocols, their data, and so on with regard to the pandemic. Of course, the government argues they were working with the social media giants to moderate content in order to stop “misinformation,” whatever that is. You know, to keep you safe. And healthy. Uh-huh. 

Anyway, as part of the lawsuit, plaintiffs asked the court to issue a preliminary injunction against the government actors to prohibit them from continuing to censor whilst the lawsuit wound its way through the courts (something that typically takes years). To obtain a preliminary injunction, a plaintiff must prove, in essence, that the defendants’ harmful actions are ongoing or imminent and likely to continue to occur or recur signaling that plaintiffs would likely prevail in the end. The trial court (also called a District Court since the case was filed in federal court) ruled in favor of the plaintiffs and issued the preliminary injunction. In so doing, the court basically told the Biden administration that it was prohibited from communicating with the defendants and trying to censor plaintiffs. 

In his 155-page ruling, which he cleverly issued on Independence Day last summer, District Court Judge Terry A. Doughty was meticulous in his analysis of the situation. Furthermore, in order to issue that temporary halt of illegal government actions, Doughty had to consider the merits of the case to some extent. Were plaintiffs likely to prevail at trial in the end? He was clear in his opinion about the answer to that question when he wrote,

If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.

That is a very powerful statement indeed.

He also wrote:

Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, 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.”

An Orwellian “Ministry of Truth”…That those words would be used to describe the United States government is both unbelievable and yet not surprising in the same breath. How far we have fallen.

Judge Doughty was sure to note that this was not a partisan issue, but instead an American issue. He quoted some of our Founding Fathers with regard to the immense import of free speech:

The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Texas v. Johnson, 109 S. Ct. 2533, 2542–43 (1989). Freedom of speech and press is the indispensable condition of nearly every other form of freedom. Curtis Pub. Co. v. Butts, 87 S. Ct. 1975, 1986 (1967).

The following quotes reveal the Founding Fathers’ thoughts on freedom of speech:

For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.

George Washington, March 15, 1783.

Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.

Benjamin Franklin, Letters of Silence Dogwood.

Reason and free inquiry are the only effectual agents against error.

Thomas Jefferson.

The question does not concern whether speech is conservative, moderate, liberal, progressive, or somewhere in between. What matters is that Americans, despite their views, will not be censored or suppressed by the Government. Other than well-known exceptions to the Free Speech Clause, all political views and content are protected free speech.

The issues presented to this Court are important and deeply intertwined in the daily lives of the citizens of this country.

After that just and proper ruling, Biden and his cohorts immediately appealed the decision to the 5th Circuit Court of Appeals (an intermediate court before you get to SCOTUS). Ultimately the 5th Circuit upheld the injunction against the government whereby prohibiting it from censoring plaintiffs through social media platforms. True to corrupt form, Biden of course expeditiously appealed to the United States Supreme Court, as he absolutely could not have his censorship program derailed by some pesky constitutionally inclined judges!

And that brings us to present day.

Point #1…The decision that was issued by SCOTUS just the other day in Murphy v. Missouri, is the final say on the question of the preliminary injunction issue, not on the underlying question of whether or not the Biden administration broke the law when censoring Americans. That issue will still be decided by the courts.

The decision was 6 to 3. So what did the 6 liberal justices on the Supreme Court hold the other day? (Yes, we have 6 liberal justices [ie those refusing to uphold and enforce the Constitution], not 3 as people who are not paying close enough attention often say). They shamefully denied the preliminary injunction that both the trial court and the appellate court issued! Here’s some of what liberal justice Amy Coney Barrett wrote for the majority…

First she writes in the beginning pages:

…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. 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.

A tall order?!? The record was over 26,000 pages long! The dissenting justices soundly noted, “The record before us is vast.” The dissent went on to say, “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.” I dare say in a century. 

Point #2…The three dissenting Justices were absolutely right. Writing for the dissent, Justice Alito spent pages upon pages giving specific examples from the vast record of the blatant censorship that took place by the US Government through its allies in Big Tech. For example, Alito wrote at one point:

Interaction related to COVID–19 misinformation continued until at least June 2022. Id., at 2663. At that point, Facebook proposed discontinuing its reports on misinformation, but assured the White House that it would be “happy to continue, or to pick up at a later date, . . . if we hear from you that this continues to be of value.” Ibid. Flaherty asked Facebook to continue reporting on misinformation because the Government was preparing to roll out COVID–19 vaccines for children under five years old and, “[o]bviously,” that rollout “ha[d] the potential to be just as charged” as other vaccine-related controversies. Ibid. Flaherty added that he “[w]ould love to get a sense of what you all are planning here,” and Facebook agreed to provide information for as long as necessary. Ibid.

What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. See, e.g., 30 id., at 9361, 9365, 9369, 9385–9388. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions. Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” Id., at 9365. When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. Id., at 9371. They pleaded to know how they could “get back to a good place” with the White House. Id., at 9403. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. 9 id., at 2713; 78 id., at 25174. 

The picture is clear.

Yeah, the record was definitely void of proof of collusion. A “tall order” to find proof of collusion, indeed… Ms. Barrett. I really encourage you to read the whole dissent. You’ll be flabbergasted by what you learn from it. It starts on page 35, here.

Moving on, at the end of the decision, liberal Justice Barrett writes for the majority:

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. This Court’s standing doctrine prevents us from “exercis[ing such] general legal oversight” of the other branches of Government. TransUnion, 594 U. S., at 423–424. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Allow me to translate: There is a record before the Court that has over 26,000 pages in it, the trial court examined the evidence and found the unconstitutionality of it so egregious that it pronounced the government actors to be akin “to an Orwellian ‘Ministry of Truth.’”  Then, the 5th Circuit agreed and upheld the trial court’s preliminary injunction that stopped the government from censoring. But we don’t think either of them is right, and we are too lazy to look at the evidence ourselves (even though the dissenting Justices took the time to do so).

Or, in more blunt terms, the translation should read, “We liberal justices (Barrett, Roberts, Sotomayor, Kagan, Jackson, Kavanaugh) don’t want to stop the government from censoring Americans, so we are going to twist ourselves into a pretzel so that we can incorrectly and illogically say that the plaintiffs here don’t have standing to obtain the relief they seek.”

Ahhhh, the old “no standing” cop-out. Now where have we heard that before? Hmmmm. Oh yes, I know! In a plethora of taboo lawsuits that sprung up in numerous states across the nation which challenged the 2020 presidential election results on a multitude of causes of action, most familiarly in my quarantine camp lawsuit against New York’s Governor and Department of Health. You’ll recall that there I successfully sued Governor Hochul and her DOH on behalf of a group of NYS Legislators arguing that the Governor breached separation of powers when she and her DOH made a grossly unconstitutional quarantine regulation that allowed them to randomly pull people from their homes, without any proof they were sick, and imprison them in a facility somewhere for an indefinite amount of time, with no due process, no right to an attorney before imprisonment, and no way to regain your freedom once imprisoned.

But, then the governor-appointed judges on the appellate court, in a stunning display of political activism, dismissed my case claiming my lawmaker-plaintiffs lacked standing. (You can read the latest on my quarantine camp lawsuit here and visit the web page on the case here).

Standing

Now we arrive at the crux of this article. What exactly is standing? In layman’s terms, standing means that someone has the right to bring a lawsuit against someone else. How do you earn that right? Well, you must have been injured by the person you want to sue. I’ll give a simple example…Let’s say your mother’s car is stolen and totaled, and the police catch the thief.  You cannot sue the thief, because it wasn’t your car, and you haven’t suffered a loss. However, your mother can sue for damages because she lost her car – she has been injured. In this example, you lack standing, but your mother has standing.

Does the requirement to have “standing” make sense? It does. To some extent. We don’t want conjectural lawsuits flooding our courts and overwhelming our system, because then the actual controversies will never get adjudicated. However, this is quantifiable. Referring back to this article’s title, the myth of standing is that it’s not actually something that is specifically mentioned or defined in our Constitution. Article III standing (which SCOTUS refers to in its Murphy decision) is based upon Article III of our Constitution, and yet, the word “standing” appears nowhere in there, and the notion was, quite frankly, made up by the Court (many moons ago) in interpreting Article III.

The legend of standing is that it is used by courts as a mechanism to get rid of cases that a court does not, for whatever its reasons, want to hear. This is a very dangerous legacy, and yet, it is 100% true. I have experienced it firsthand with my epic quarantine camp lawsuit against Governor Hochul, which I referenced earlier. The lie of standing is that it is a thing that can in and of itself be a lie. In other words, it is more and more frequently used as both a sword and a shield, as we say in the world of litigation. But when something can be used as both a sword and a shield, it tends to not hold any truth…it is a non-truth…commonly known as a lie.

The Fallout

So what does this ruling mean? For starters, one ramification is that SCOTUS has embarrassed itself and lost even more credibility by ruling that the plaintiffs don’t have standing to sue for a preliminary injunction. Well, at least the six liberal justices (Barrett, Roberts, Sotomayor, Kagan, Jackson, Kavanaugh) have embarrassed themselves. The three Constitutionalists on the Court (Alito, Gorsuch, and Thomas) wrote a fantastic, and scathing dissent in the case. It starts on page 35 if you want to read it here.

What this ruling means for plaintiffs on a practical level is that the government (ie the defendants) can continue to censor them by pressuring (read forcing) social media companies to limit their speech on their platforms while the case continues to wind its way through the courts over the next however many months/years. 

As Justice Alito put so well in his dissenting opinion, the majority’s erroneous ruling now “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.”

He also wrote:

What the officials did in this case was subtle, 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 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.

In other words, censor away Biden officials! In a nutshell, this decision is disgraceful, and those six judges have proven themselves to be political hacks with an agenda. It’s a good thing we have a presidential election coming up in a few months. Censorship played absolutely no role in the last one, so we’re good. (Sarcasm intended).

It’s a sad day in American jurisprudence.

A Heartfelt “Thank you”

I want to thank each and every one of you who has reached out to me with your kind words of support and encouragement in light of the recent loss of my mentor, my hero, my father. After I posted my last Substack, “In Memoriam,” I have received so many cards, emails, texts, phone calls, and posts from you, and I want you to know how very grateful I am. The outpouring has been so wonderful. I doubt I will ever be able to respond to each message individually, so please know that your words of support are truly helping me during this difficult time.

So, I thank you all from the bottom of my heart.

Republished from the author’s Substack