President Biden won again at the Supreme Court Wednesday when a 6-3 majority tossed a lawsuit (Murthy v. Missouri) accusing his Administration of colluding with social-media platforms to censor controversial Covid views. Don’t be surprised if government officials read the ruling as a license to do more stealth censoring.
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The majority rebukes lower courts for glossing over “complexities” in the evidence. “Different groups of defendants communicated with different platforms, about different topics, at different times,” Justice Barrett writes, adding that “the links must be evaluated in light of the platform’s independent incentives to moderate content.”
Alas, the majority brushes past how officials effectively coerced platforms, as Justice Samuel Alito explains in a potent dissent joined by Justices Clarence Thomas and Neil Gorsuch. Justice Alito recounts sundry examples of Biden officials hectoring Facebook in public and private to aggressively police “misinformation,” sometimes with thinly veiled threats of government retaliation. After Biden officials fumed, Facebook increased its moderation.
Facebook’s reactions “were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions,” Justice Alito writes. “Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster.”
Also critical of the ruling in Murthy v. Missouri is Reason‘s Robby Soave.
Writing smartly about Murthy v. Missouri before the ruling was handed down was Tom Hazlett. Two slices:
But if the state is victorious in this suit, the genius of the First Amendment will be collateral damage.
“The purpose of the Constitution and Bill of Rights…was to take government off the backs of people,” wrote Justice William O. Douglas in Schneider v. Smith. “The First Amendment’s ban against Congress ‘abridging’ freedom of speech [creates] a preserve where the views of the individual are made inviolate.” Law professor Lucas Powe—once a clerk for Douglas—expanded: “Our traditions are clear. A fair press, as determined by a government mechanism, is not a free press. A free press may be fair; we hope it will not be irresponsible; but…for the press to serve as a check on the government it must be free to gather and report information about government and those who do or would govern.”
The evidence in Murthy shows that the U.S. government actively monitors online discussions, targets speech that breaks no laws, and then aggressively requests that the speech’s distribution be reduced or labeled as dubious or false. Government officials are free to make such points in open debate, but a Truth Squad operating behind the scenes violates the spirit and letter of the Constitution.
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Whatever one’s views of the efficacy of COVID-19 vaccines, it is clear that many people (experts included) have changed their minds about them. It is well to recall that in October 2020, for example, MSNBC hosts denounced the Trump administration for rushing the Moderna and Pfizer shots to the public. The network appears to view things differently now. This should surprise no one. What would be shocking would be a situation where any group, including government experts, never let their understanding of the truth evolve. That’s one reason freedom of debate is key.
Consider one of the most colossal censorship errors ever made in a free, democratic republic. In 1934, Winston Churchill’s speech condemning “the danger of ignoring German rearmament” aired over the national radio system, the BBC. Churchill was then silenced—for six years the BBC barred his appearance. Only in 1940, when Hitler was marching through Europe, World War II had come to England’s doorstep, and Winston Churchill was prime minister would his anti-Hitler message again be heard on the nation’s airwaves. Whatever the chances that Churchill’s plan of a tough-minded, preemptive move to block Adolf Hitler may have averted the “gathering storm,” the tens of millions who died in the horrors of World War II would never know.
By suppressing his speech, the BBC’s censors—the disinformation board of its time—likely contributed to carnage. In lieu of saving face for officials running the policy show, the lower-risk path would be to let competing viewpoints bloom. It’s the profound gift of a rule prohibiting government’s veto power over free speech.
The court ruled that the plaintiffs (Missouri and Louisiana, as well as me and other blacklisted individuals) lacked standing to sue. This means that the Administration can censor ideas & no person will have standing to enforce the 1st Amendment. Free speech in America, for the moment, is dead.
At the same time, Justice Alito’s excellent dissent usefully summarizes a sustained campaign of brutal and vicious threats made by the Biden Administration against Facebook during Covid from 2021 to 2022. Biden threatened to breakup Facebook with an antitrust suit if it did not greatly censor vaccine skeptic speech. Facebook meekly complied because they had bigger fish to fry. This was a clear violation of the First Amendment by the Biden Administration. It was a gross misuse of presidential power that, at the time, was a High Crime or Misdemeanor. The plaintiffs in this case might have standing to sue the various government officials mentioned in their complaints for money damages, but they do not have standing to sue for a prospective injunction.
About the Murthy v. Missouri ruling, Brent Skorup is more critical than Steven Calabresi. Two slices:
The Supreme Court has been clear in the past that government officials cannot directly or indirectly coerce a private party to censor speech on the government’s behalf. However, in its Murthy v. Missouri decision today, the court made it harder for Americans to vindicate their free speech rights when censorship is secretive.
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[T]he Supreme Court today reversed those lower court decisions. The court held that Kulldorff and others had not presented enough evidence of censorship and therefore they lacked standing to sue. For now, government communications with social media companies can continue. It’s discouraging to see the court impose a high burden on people who want to prevent the government from using its power to indirectly chill the speech of private parties and government critics.
And Vero here again warns of the U.S. government’s fiscal incontinence. A slice:
Contrary to what you may have heard, this rapid expansion of government is more than a response to recent crises, though some of it does reflect the oversized response to COVID-19. More importantly, the expansion results from a fundamental shift in the size and scope of federal activities.
Fiscal recklessness threatens the very foundations of our economic prosperity. As government expands, it crowds out private investment, stifles innovation, and places an ever-growing burden on future generations. The rising costs of debt service alone—projected to reach $1.7 trillion annually by 2034—will consume an ever-larger share of our national resources, leaving less for critical investments in infrastructure, education, and research. The costs of these interest payments, in turn, will be paid for by more borrowing. That will fuel inflation and make the Fed’s job harder.
FDR, LBJ and Reagan, unlike Biden, could claim mandates for their ambitious agendas (LBJ’s after 1964) because they won landslide elections. Biden’s legacy will not be defined by the worst inflation in 40 years. The bad news is that this and everything else will be eclipsed by the shocking selfishness of his quest for a second term during his obviously accelerating decline.
And his opponent? Since 2016, Trump has specialized in policy pronouncements that are just noise. Remember his vow that Mexico would pay for the border wall? And his promise to eliminate the national debt — not the annual budget deficit, which would have been improbable enough — in eight years? (In his four years, he increased the debt almost $8 trillion.) Reticence, which is not his default position, has been his understandable response to the Congressional Budget Office’s recent report that debt service this year will exceed defense spending and Medicare spending.
