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Supreme Court Delivers Major Setback to First Amendment in Murthy v. Missouri Ruling

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On Wednesday, the Supreme Court delivered a devastating blow to the First Amendment with a much-anticipated ruling regarding the US Government’s attempts to indirectly regulate online speech during the COVID-19 pandemic.

Justice Amy Coney Barrett wrote for the court, in a 6-3 decision finding that the challengers lacked the proper standing to file the lawsuit in Murthy V. Missouri:

Two States and five users of social media sued dozens of officials and agencies of the Executive Branch, claiming that they had pressured platforms to suppress protected expression in violation of the First Amendment. The Fifth Circuit agreed and concluded that the officials’ communication made them responsible for private platform moderation decisions. The court then upheld a broad preliminary injunction.

The Fifth Circuit erred in doing so. For plaintiffs to establish standing, they must show that they face a significant risk of suffering an injury in the near term that can be traced back to the Government defendant and that the injunction sought will remedy that injury. No plaintiff has met this burden and therefore no one has standing to request a preliminary order.

Barrett added:

The evidence shows that, while the record indicates that defendants from the Government played a part in some of the platforms’ moderation decisions, they had their independent motivations to moderate the content and used their judgment. By attributing to defendants at least a part of every platform decision, the Fifth Circuit glossed over the complexity of the evidence. The Fifth Circuit erred in treating defendants, platforms, and plaintiffs as one unified entity.

In general, the plaintiffs do not link past social media restrictions with defendants’ communications on the platforms. Louisiana and Missouri state plaintiffs refer to only the action taken by Facebook in response to a Louisiana representative’s comment about children and COVID-19. They never mention when Facebook took any action against the official post, which is crucial to establishing a causal connection. The three plaintiff doctors have not established that the White House or CDC officials are responsible for their previous restrictions. The doctors highlight the restrictions imposed on Twitter and LinkedIn but only refer to Facebook’s communication with White House officials. Jim Hoft is a journalist who ran a news site and experienced restrictions related to the election on different platforms. He cites the FBI as a key player in the adoption of policies on hacked material by platforms and claims Twitter has restricted its content based on these policies. Hoft’s statement reveals, however, that Twitter acted following its own rules regarding the posting of private and intimate media without consent. Hoft has not provided any evidence to support the claim that his injuries in the past are most likely linked to CISA or FBI. Jill Hines was a healthcare advocate who faced COVID-19-related restrictions on Facebook. She is the strongest plaintiff, but most of her arguments are weak. Facebook began targeting her content even before it communicated with the White House or the CDC. This weakens the argument that the restrictions she has faced are due to the Government’s enforcement of Facebook policies. Even if Hines can show traceability, it’s only relevant insofar that it predicts future events.

Justice Samuel Alito, joined by Justices Clarence Thomas, and Neil Gorsuch in a dissenting view, noted that “If lower courts’ assessments of the voluminous records are correct, then this is one the most important cases of free speech to come before this Court in recent years.” Alito ended his dissenting opinion with the following:

For months, senior government officials have relentlessly pressed Facebook to suppress the free speech of Americans. Since the Court has refused to deal with this grave threat to the First Amendment in a way that is not justified, I respectfully dissident.

This case was born out of a lawsuit filed jointly by Louisiana and Missouri to challenge the legality of federal agencies working together with social media companies to suppress views that the government did not agree with. Missouri v. Biden was the original name of the case. District Court Judge Terry Doughty imposed an injunction against several Biden Administration officials. This injunction prevented them from contacting any social media service for “urging, encouraging or pressuring or inducing, in any way, the removal, deletion or suppression of protected free speech content.” In the joint agreement, there were agencies such as the Department of Justice and Health and Human Services. The State Department. Centers for Disease Control and Prevention. And the Federal Bureau of Investigation. The document also prohibited government contact with certain academic programs that study “disinformation.”

Although disappointing, the decision is not unexpected, as the majority of justices seemed skeptical about the case at the oral hearings.

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