Supreme Court Punts on Technicalities

The Supreme Court issued a very disappointing ruling today in our Murthy v. Missouri case. Note that this is not a final ruling, but only a ruling on the preliminary injunction. The case will continue. The key takeaway from the Court was this finding:

Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.

The Supreme Court punted here, refusing to opine on the merits of the case. The standing finding rests on technicalities that I will do my best to explain. To clarify, this ruling that we lack standing on the preliminary injunction does not mean we lack standing to bring the case to trial. The case will move to the trial phase at the District Court now, where we will seek additional discovery and continue to expose the government’s elaborate censorship machinery. I hope we can uncover sufficient evidence for the Supreme Court not to continue to look the other way when it comes to a final ruling.

Writing for the majority, Justice Amy Coney Barrett explains:

Here, the plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. Instead, they seek to enjoin the Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.

But this is manifestly untrue: it was the platforms’ actions done at the behest of the government. The whole Constitutional problem is one of joint action, where the state forced third parties to censor. I don’t see how the Court could miss this obvious fact, given the evidence we presented. The ruling continues:

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.

Apparently, the fact that we are still being censored on several platforms is insufficient to establish this? A related issue is one of traceability: the Court insists that we show that particular instances of censorship are directly linked to particular government actions. But this traceability standard presents an impossibly high burden for plaintiffs—any plaintiffs—to meet. The government conducts its communications with social media companies in secrecy, and subpoenaed documents tell only a small part of the story—they can’t capture phone conversations or private meetings, for example. 

On this standard, so long as the government does not name names of individuals in writing that it wants to be censored, then the government can exercise broad censorship powers and no one who is directly or indirectly harmed can have any recourse to legal redress. For example, the government could order Facebook and YouTube to censor anyone favorable towards the Great Barrington Declaration, a document critiquing our pandemic response written by my co-plaintiffs Jay Bhattacharya and Martin Kulldorff. So long as those censored were not specifically named by the government, any person on the receiving end of this censorship would not be able to definitively establish in court that their censorship was government-driven.

The upshot is the government can continue to censor so long as the targets are ideas, topics, themes, and not specifically named individuals. In other words, it can do precisely what the First Amendment forbids: content-based censorship.

Try, if you can, to follow the byzantine logic of this judicial reasoning:

The plaintiffs suggest that the platforms continue to suppress their speech according to policies initially adopted under Government pressure. But the plaintiffs have a redressability problem. Without evidence of continued pressure from the defendants, the platforms remain free to enforce, or not to enforce, their policies—even those tainted by initial governmental coercion. And the available evidence indicates that the platforms have continued to enforce their policies against COVID–19 misinformation even as the Federal Government has wound down its own pandemic response measures. Enjoining the Government defendants, therefore, is unlikely to affect the platforms’ content-moderation decisions.

Translation: even if the government coerced platforms to censor you in the past, and platforms continue to censor you according to these same policies—and without any evidence (just taking the government’s word for it) that the government is not coercing platforms anymore—plaintiffs cannot prove that they will likely be harmed in the future, which is one of the necessary criteria for a preliminary injunction. Translation: they got away with it in the past, and we trust they won’t do it again in the future. Or if they do, you won’t be able to prove they were targeting you by name.

Let me try an analogy here: the government placed its boot on the platforms’ face, and the platforms tried to resist but eventually complied, however reluctantly, as the record in our case showed. Now the government claims it’s no longer stomping on the platforms’ face, which means the platform is free to go against the government’s directives now if they so choose. Forgive me if I think this strains all plausibility.

Finally, for purposes of the injunction at least, the Court rejected our argument, grounded in prior First Amendment cases, that free speech protects the rights of the listener and not just the speaker.

The plaintiffs next assert a “right to listen” theory of standing. The individual plaintiffs argue that the First Amendment protects their interest in reading and engaging with the content of other speakers on social media. This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech. While the Court has recognized a “First Amendment right to receive information and ideas,” the Court has identified a cognizable injury only where the listener has a concrete, specific connection to the speaker. Kleindienst v. Mandel, 408 U. S. 753, 762. Attempting to satisfy this requirement, the plaintiffs emphasize that hearing unfettered speech on social media is critical to their work as scientists, pundits, and activists. But they do not point to any specific instance of content moderation that caused them identifiable harm. They have therefore failed to establish an injury that is sufficiently “concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. The state plaintiffs assert a sovereign interest in hearing from their citizens on social media, but they have not identified any specific speakers or topics that they have been unable to hear or follow.

Again, try to follow the logic here: plaintiffs “do not point to any specific instance of content moderation that caused them identifiable harm” and the two states “have not identified any specific speakers or topics that they have been unable to hear or follow.” But wait a minute. Those instances are not available for us to find precisely because the information was censored, which means we cannot access it!

That information went down the digital censorship memory hole incinerator—it was effectively destroyed by being removed—so how can we possibly present it to the court? The crime itself made the evidence disappear. Under this impossible burden of proof, how can any Americans possibly assert their First Amendment rights?

Justice Alito, joined by Thomas and Gorsuch, wrote a blistering dissent to this ruling. I’ll post more on that later. It is disappointing that we only have three justices of the Supreme Court who seem to understand what is at stake in this case.

In the meantime, rest assured that we will continue to fight the government’s censorship leviathan in court. As the case goes back to the District Court for trial we anticipate more discovery, which will allow us to continue to shine a light on the government’s unconstitutional behavior. Perhaps we will uncover communications that even meet the Supreme Court’s impossibly high traceability standard.

Some individuals were specifically named and targeted in the government’s missives to social media companies, and at least one of them—Robert F. Kennedy, Jr.—has filed an analogous case already. Maybe a Presidential candidate will fare better on the standing issue than we did.

This is not the end, my friends. Just one battle in what will prove to be a long war. Onwards!

Republished from the author’s Substack