Murthy v. Missouri
Perhaps the most significant statement in the otherwise disappointing but predictable majority opinion comes in a footnote.
"Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action."
Perhaps the most significant statement in the otherwise disappointing but predictable majority opinion comes in a footnote.
"Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action."
The idea that the plaintiffs couldn't prove traceability -- despite overwhelming evidence of government officials and their cutouts working in myriad ways to suppress the very speech at issue reveals a lack of knowledge of the full record IMO from the majority
Worse, the default standard seems to be that government can do a whole host of things to abridge our speech en masse, and the bar is incredibly high for anyone to do anything about it. That's the fundamentally disastrous part of the standing cop-out
The majority says in a footnote that "The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous." I think the plaintiffs would beg to differ -- but the censors will cheer
The majority blames the plaintiffs for failing to show government actions led them to be censored. The record apparently was just too massive for it to parse. This is how the First Amendment dies
Sickeningly, the Court relies on its disastrous ruling preventing the Trump administration from reinstating a clearly constitutional census citizenship question based on grounds for standing ultimately debunked
While SCOTUS' ruling in Murthy does not wholly doom the underlying case by skirting the merits, it is jet fuel for the Censorship-Industrial Complex -- a green light for it to engage in infinitely more pervasive, surreptitious, and decisive ways in the 2024 election
Don't worry, says SCOTUS, CISA -- the nerve center of fed-led speech policing in 2020 -- won't abridge your speech this time around
Heads government censors win, tails you lose
Justice Alito is manifestly correct here -- and in so doing he exposes the massive dereliction of duty the majority engaged in:
"government officials may not coerce private entities to suppress speech...and that is what happened in this case."
"government officials may not coerce private entities to suppress speech...and that is what happened in this case."
Justice Alito hammers his dissent home with focus on one plaintiff:
"For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government 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, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit. These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992), and 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."
"For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government 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, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit. These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992), and 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."
Three of nine Supreme Court justices know what time it is:
"What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, 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."
"What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, 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."
Hugely important distinction drawn about the awesome power government officials have over social media platforms -- the modern digital public square -- over traditional newspapers
As always, if the Trump administration did it it would be impeachment and removal. When The Regime does it, it's just a day ending in "y"
Justice Alito on the government speech-policing SCOTUS today refused to censure:
"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. 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. The picture is clear.
"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. 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. The picture is clear.
On the matter of "traceability" of government actions to harms on the plaintiffs that the Court's majority dismissed, Justice Alito says "[Jill] Hines made the requisite showing—with room to spare," and provides receipts
Justice Alito on the Court's willful blindness: "The Court discounts this evidence [of one plaintiffs' standing] because [that plaintiff, Jill] Hines did not draw the same links in her briefing"
Justice Alito highlights the disparity in SCOTUS' giving of standing to groups who claimed noncitizens would suffer a chill from and not participate in the census with the reinstatement of a census citizenship question, versus lack of standing given to those censored under policies from social media companies that federal agencies and White House officials demanded
The Supreme Court's default position is in favor of government censorship today. It is incumbent on the legislative branch to act, but in powerful respects the horse has left the barn
All Wrongthinkers are apparently not treated equal
Justice Alito skewers the majority for its dismissal of the threats from high-ranking officials toward social media companies.
"[D]eath threats can be very effective even if they are not delivered every day"
"[D]eath threats can be very effective even if they are not delivered every day"
Justice Alito dices up the argument that government officials were just using the bully pulpit when they led arguably the largest censorship regime in America history:
"Flaherty, Slavitt, and other officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of the President’s bully pulpit. That stretches the concept beyond the breaking point. In any event, the Government is hard-pressed to find any prior example of the use of the bully pulpit to threaten censorship of private speech."
"Flaherty, Slavitt, and other officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of the President’s bully pulpit. That stretches the concept beyond the breaking point. In any event, the Government is hard-pressed to find any prior example of the use of the bully pulpit to threaten censorship of private speech."
Justice Alito, joined by Justices Thomas and Gorsuch, stand in the breach for free speech:
"For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent."
"For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent."
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