Murthy v. Missouri: SCOTUS rules against freedom to listen
Government unleashed
Following the Supreme Court’s decision in Murthy v. Missouri last Wednesday, the government is free to resume contact with third parties regarding the combating of what it terms dis- and mis-information. The Fifth Circuit had previously upheld an injunction preventing the government from colluding with third parties to suppress free speech; the Supreme Court, in a 6:3 decision, overruled the Fifth Circuit.
The Court’s ruling was based on its finding that the plaintiffs had failed to prove they were personally harmed by the government’s efforts to persuade and coerce companies such as Facebook and Twitter to suppress the speech of those who challenged the government’s narrative.
"We begin — and end — with standing," wrote Justice Amy Coney Barrett for the majority opinion.
While some have interpreted this as dismissing plaintiffs’ claims on a technicality, in fact the judges who ruled against the plaintiffs made a clear statement on what they perceive as the limits of free speech.
America’s Frontline Doctors denounces ruling
America’s Frontline Doctors (AFLDS) had filed an amici curiae brief in support of the plaintiffs, and in a press release following Wednesday’s ruling, the organization denounced the Supreme Court “for failing to affirm the lower court’s decision to permanently ban government agencies and their employees from colluding with Big Tech companies to suppress free speech over social media.”
As AFLDS-affiliated attorney David Dalia noted, the Attorneys-General of Missouri and Louisiana uncovered,
... countless examples of unconstitutional censorship, coercion, and strong-arming of social media companies by numerous government bureaucrats. These employees were working at the White House, the Surgeon General’s office, CDC, NIH, HHS, FBI, the Census Bureau, and others...
Indeed, according to Fifth Circuit Judge Terry A. Doughty, the censorship in this case was arguably “the most massive attack against free speech in United States’ history.”
Judges are not pigs
The Supreme Court did not deny the mass of evidence presented by the plaintiffs. Instead, the six judges of the majority suggested that the vast amount of evidence presented was actually not to the plaintiffs' benefit, because it was too difficult for the judges to go searching among this heap of evidence for “specific causation findings”:
To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But it is especially important to hold the plaintiffs to their burden in a case like this one, where the record spans over 26,000 pages and the lower courts did not make any specific causation findings. As the Seventh Circuit has memorably put it, “judges are not like pigs, hunting for truffles buried in the record.”
The three dissenting judges did however manage to find “truffles buried in the record” — in fact, they found the truffles scattered about so profusely that any suggestion that they were “buried” might be seen as laughable.
Emails such as the one below, from Nick Clegg, Meta’s President of Global Affairs, to Vivek Murthy, the U.S. Surgeon-General, pretty much gave the game away:
It wasn’t the government — It's Big Tech doing the censoring
How indeed did six Supreme Court justices explain away emails such as this one? Writing for the majority, Justice Barrett declared that the plaintiffs had not proven that all this coerced censorship would actually harm them in the future:
To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. No plaintiff has carried that burden.
Barrett didn’t deny the injury. She just denied that government was fully to blame. The majority ruling conceded that government agencies had “played a role in at least some” of the moderation choices of the social media companies, but argued that the companies also had their own motivations for censoring content.
To support this claim, Barrett wrote that,
... the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved.
But even mainstream news sites such as CNN and BBC have documented government pressure on social media sites to block accounts and censor speech, followed by the capitulation of the media companies, demonstrating that the government did in fact have an impact on what was censored as the Big Tech companies were not merely doing what they would have done anyway.
With regard to the plaintiffs in this case, the majority’s argument that Hines, one of the plaintiffs, was blocked before the White House intervened, is somewhat bizarre:
A healthcare activist, Hines codirects “Health Freedom Louisiana,” a group that advocated against COVID–19 mask and vaccine mandates. In October 2020—before the start of communications with the White House and the bulk of communications with the CDC—Facebook began to reduce the reach of Hines’ and Health Freedom’s pages…
Three months earlier, a White House official sent Facebook several “suggestions” that were “circulating around the building and informing thinking,” including that the platform should “end group recommendations for groups with a history of COVID–19 or vaccine misinformation.” A week later, Facebook replied that it had “already removed all health groups from our recommendation feature.” It is hard to know what to make of this. Facebook reported that it had already acted, which tends to imply that Facebook made its decision independently of the White House. [Emphasis added.]
Barrett thus “established” that the social media companies were independent actors and immune to government coercion. She was then able to conclude that banning government agencies from colluding with the companies would not solve the problem of censorship, as Facebook and others would do it anyway of their own accord — and so one of the key requirements of standing was not met. But it's not clear whether Facebook removed the health groups from their recommendation feature before the government's request, or during the intervening week that preceded Facebook's reply.
It was the government — but they’ve stopped, so what’s all the fuss about?
The ruling then took another twist. After “proving” that the social media companies were not actually being fully coerced, Barrett wrote that since government coercion has now stopped (as the “pandemic response” has wound down), there is no need for the Court to intervene:
... 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.
Apparently, companies quickly forget what the government threatened just a few short years ago and no longer feel under any pressure to do the government’s bidding. Apparently also, Barrett does not fear any future scenario in which the government might conceivably restart its coercive practices (even as the next “pandemic emergency” looms).
Justice Alito: Facebook ‘whimpered’ and capitulated
Writing for the minority, Justice Alito described how Facebook and other social media companies had “repeatedly yielded” to government coercion, after being “implicitly threatened ... with potentially crippling consequences.”
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 even claim to be literally false, but nevertheless wanted obscured. 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.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to know how they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser.
Justice Alito added that the “past and threatened future injuries” to the plaintiffs were certainly “caused by and traceable to censorship that the officials coerced” and that the Court could therefore effectively intervene to remedy the situation.
... 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...
The government didn’t mean ‘you’ — where does it say your name?
As noted above, the SCOTUS ruling dealt only with the injunction against government collusion with social media companies. It did not deal with what many see as the primary legal argument here: whether the government is restricted by the First Amendment protections of free speech. An upcoming case, Berenson v. Biden, may address this question directly.
According to John Vecchione, senior litigation counsel at the New Civil Liberties Alliance (NCLA),
The Supreme Court majority has declared Americans' right to free speech online unprotected. The government can pressure third parties to silence you, but the Supreme Court will not find that you have a right to complain about it unless they call you by name.
Alex Berenson is a former New York Times reporter whose Twitter (now X) account was closed during the COVID years after his posts challenging the government narrative garnered millions of views. His account has since been restored by X owner Elon Musk. Unlike the plaintiffs in Murthy v. Missouri, Berenson has clear evidence that he was singled out by name for special treatment:
Why not go after the social media companies too?
Why have Alex Berenson, the states of Missouri and Louisiana, and plaintiffs such as Dr. Jay Bhattacharya chosen to sue the government (e.g., Dr. Vivek Murthy, Surgeon-General) rather than the social media platforms themselves? The reason was made clear in one of the paragraphs of the dissent:
Purely private entities like newspapers are not subject to the First Amendment. They may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, and that is what happened in this case.
It appears that SCOTUS recognizes the social media companies as “purely private entities” which can pick and choose their clients. In a free marketplace, anyone who dislikes being barred from Facebook, for instance, can open a competing company with different policies. In fact, when Elon Musk took over Twitter, he effectively proved that the social media giants are not guaranteed to act as government stooges — at this point in time, at any rate.
Does this apply to 2020, 2021, and 2022 when government’s hand was heavy on the necks of anyone who dared to dissent?
My right to your free speech
The Fifth Circuit’s ruling, unlike SCOTUS, determined that the states of Missouri and Louisiana did have standing in the case, “both because the platforms had restricted the posts of individual state officials and because the States have the “right to listen” to their citizens on social media.”
This would seem to imply that the government had effectively silenced all social media sources so that there was literally nowhere left to hear citizens freely. The Fifth Circuit did not claim that some new social media company should be established to provide a platform for those barred elsewhere, presumably because it determined that the government would not allow any new platform to act freely.
In fact, SCOTUS does not make this claim either. The majority ruling does not dispute the plaintiffs’ argument that the government made it impossible to listen to the speech of those censored by social media. What the ruling does instead is challenge the idea that free speech means the freedom to hear everyone’s speech:
We conclude briefly with the plaintiffs’ “right to listen” theory. The individual plaintiffs claim an interest in reading and engaging with the content of other speakers on social media. The First Amendment, they argue, protects that interest. Thus, the plaintiffs assert injuries based on the restrictions that countless other social-media users have experienced.
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. This Court has “never accepted such a boundless theory of standing.” [emphasis added]
No broad public interest in a broadly mandated drug?
Justice Barrett notes that there is a place in law for a “First Amendment right to ‘receive information and ideas,’” but adds that it is extremely limited.
... we have identified a cognizable injury only where the listener has a concrete, specific connection to the speaker. Kleindienst v. Mandel ... For instance, in Mandel, we agreed that a group of professors had a First Amendment interest in challenging the visa denial of a person they had invited to speak at a conference ... And in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., we concluded that prescription-drug consumers had an interest in challenging the prohibition on advertising the price of those drugs...
Given that Americans were not only “COVID-shot consumers” but actually mandated in many cases to take the shots, one could conceivably make the argument that all American citizens have an interest in challenging the prohibition on publicizing the dangers of those shots.
Can you identify something if you can’t see or hear it?
Barrett, however, does not make this leap. Instead, she continues her attempt to undermine the notion that free speech could mean freedom to listen to any speech, writing,
... 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.
This too is curious, as it would seem very challenging for any scientist, for example, to point to a “specific instance of content moderation” in someone else’s social media account if they are prevented from knowing what that content is, because the account has been suspended.
Barrett then makes the same argument with regard to the states:
The state plaintiffs, claiming their own version of the “right to listen” theory, assert a sovereign interest in hearing from their citizens on social media ... But this theory suffers from the same flaws as the individual plaintiffs’ theory. The States have not identified any specific speakers or topics that they have been unable to hear or follow.
Perhaps for the simple reason that those speakers have been silenced, they have been unable to identify them.
Freedom to hear speech must be enshrined in law
According to plaintiff Dr. Bhattacharya,
Free speech is essential to science, public health, and good health.
He has now called for Congress to step in to restore and protect the right to free speech in America. Perhaps what is now needed is legislation that makes it clear that free speech only has meaning when people are free to hear that speech.
Meanwhile, AFLDS Founder and President Dr. Simone Gold noted:
Murthy v. Missouri is a deeply personal case for me due to the tremendous amount of work that I have done over the last few years and the tyranny I experienced first-hand. I was named by our own government as one of the worst purveyors of COVID-19 misinformation. They violated my constitutional liberties. And in doing so, they trampled on the rights of all Americans.
Americans want not only the right to speak, but also the right to know, to have free access to knowledge, to weigh it and sift it according to their best judgment, and then draw their own conclusions. In Wednesday’s ruling, SCOTUS determined that ideas and knowledge may be suppressed, by government, acting not as “We the People” but as “We against the People.”
