No standing for the First Amendment?

Murthy v. Missouri was just decided by SCOTUS... kinda.

The Supreme Court just issued a disappointing ruling.

The case (Murthy v. Missouri) was about how various US government actors and agencies pressured social media companies into censoring content on their platforms if the government deemed it “misinformation” related primarily to Covid-19, and to a lesser extent, the 2020 US presidential election.

The plaintiffs were the states of Missouri and Louisiana, along with private individuals such as scientist Jay Bhattacharya (co-author of the Great Barrington Declaration), who had their speech censored for making scientific statements that the government didn’t like, but which were more often then not true.

Lower courts sided with the plaintiffs. One judge went so far as to accuse federal agencies of taking on the role of “an Orwellian Ministry of Truth”. The US court of appeals for the fifth circuit agreed and issued a sweeping injunction prohibiting the government from doing such things going forward.

Many of us thought that the current constitution of the Court would agree.

But alas, it was not so. And not so in a very weird and anti-climactic way.

In a 6-3 decision, the Supreme Court held that the plaintiffs lacked standing to bring the lawsuit at all!

The majority opinion, written by Justice Amy Coney Barrett, concluded that the plaintiffs failed to demonstrate a concrete and particularized injury, as required by Article III of the Constitution. The court also found that the government’s actions did not constitute a “state action” that would trigger First Amendment protections.

That’s some pretty weak sauce, right there.

The bulk of the case (and the nationwide controversy) involves a very important First Amendment issue. Can the government use all the various types of pressure it can exert on a private company to make them censor a citizen’s speech?

Is such behavior a violation of the First Amendment? Or is it true what all the lefties and bootlickers have been screeching, that this is just an example of private companies moderating their content as they see fit?

The ruling doesn’t address that very important question at all.

It’s pretty disappointing to see such an important case get kicked aside for some procedural nonsense as a perceived lack of standing. And to say that the plaintiffs “failed to demonstrate a concrete and particularized injury”?

My not-so-legal analysis of that conclusion is: That’s nuts.

Three of the more conservative justices, Clarence Thomas, Neil Gorsuch, and Samuel Alito, dissented. Writing for the minority opinion, Justice Alito wrote that this is “one of the most important free speech cases to reach this Court in years.”

He added that, “the Court, however, shirks its 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. That is regrettable.”

I quite agree.

This case (and the ones that will surely follow) are going to have to grapple with the fuzzy distinction between government edict and government “suggestion”.

I’m sure the plaintiffs would have won if the government had issued a decree to Facebook and Twitter, saying, “Thou shalt delete the posts and accounts of X, Y, and Z persons, on penalty of fine or imprisonment.”

But what if government officials merely make a few suggestions about what they want these companies to do — while simultaneously hauling the CEOs of these companies before congress and making not-at-all-veiled threats of increased FCC regulation, or removal of Section 230 protections, or outright nationalization of these firms?

I picture the stereotypical Italian mobster:

“That’s a real nice social media company ya got dere. It’d be a real shame if’n something should happen to it.”

Since our government has grown so huge and intrusive, and regulates so heavily so many aspects of our society, the bright-line distinction between government action and private action has grown very fuzzy.

Three of the Supreme Court justices see that. Six don’t.

I hope they figure it out soon, because if this case isn’t considered a First Amendment case then we don’t have a First Amendment any more.

Naturally,

Adam

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