As we have long said, “If your business depends on a platform, you don’t have a business.” That principle implies “If your right to free speech depends on a platform, you don’t have free speech.” And now we are seeing that Biden Administration efforts to pressure social media companies to clamp down on “misinformation” even when later proven to be true, such as the bona fides of Hunter Biden’s laptop, are in the free and clear.
In a Kafkaesque ruling, the Supreme Court decided by 6 to 3 that the plaintiffs in Murthy v. Missouri, who’d largely prevailed in lower court decisions, did not have standing to bring the case. We have embedded the ruling at the end of this post, and the document includes Samuel Alito’s dissent.
Oddly, there’s comparatively little reaction in the Twitterverse to this loss to users and the public at large. I hope Glenn Greenwald weight in. There are only a few pointed takes like these:
It’s a sad day for America, as the Supreme Court has just ruled that the government can collude with Big Tech companies to censor free speech.
The First Amendment is now dead in the United States. pic.twitter.com/bvLWjfGwcw
— Tulsi Gabbard 🌺 (@TulsiGabbard) June 27, 2024
BREAKING: Jonathan Turley condemns Supreme Court ruling allowing the Biden White House to limit free speech, says, “The Government is engaging in censorship by surrogate,” and adding, “They have made a mockery of the limits of the 1st Amendment.” WATCH pic.twitter.com/BCBRHeaJ0j
— Simon Ateba (@simonateba) June 26, 2024
Now admittedly, the case has simply been remanded. The plaintiffs have the opportunity to amend their filings so as to attempt to cure the standing problem, or make new filings with different plaintiffs. However, the logic of the ruling poses a high bar.
To put this in simple terms, the Supreme Court found that the plaintiffs had not demonstrated that they had been harmed with sufficient particularity, as both shown that they had been damaged and produced a smoking gun as to whodunnit. The latter point of view flies in the face of many past rulings that found that government throat-clearing could have a chilling effect and that alone was sufficient to support a First Amendment challenge. Here, instead, the plaintiffs were to demonstrate that they faced the prospect of not just past but probable future censorship. For anti-vaxxers, that seems intuitively plausible, but how does one demonstrate that?
This is the gist of the decision on standing. For ease of digestion, from the Syllabus:
Neither the individual nor the state plaintiffs have established Ar- ticle III standing to seek an injunction against any defendant. Pp. 8– 29.
(a) Article III’s “case or controversy” requirement is “fundamental” to the “proper role” of the Judiciary. Raines v. Byrd, 521 U. S. 811, 818. A proper case or controversy exists only when at least one plain- tiff “establish[es] that [she] ha[s] standing to sue,” ibid.—i.e., that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling,” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409. Here, the plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the plat- forms from restricting any posts or accounts. Instead, they seek to enjoin the Government agencies and officials from pressuring or en- couraging the platforms to suppress protected speech in the future.
The one-step-removed, anticipatory nature of the plaintiffs’ alleged injuries presents two particular challenges. First, it is a bedrock prin- ciple that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41–42. Sec- ond, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” O’Shea v. Lit- tleton, 414 U. S. 488, 496. Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. Here, at the pre- liminary injunction stage, they must show that they are likely to suc- ceed in carrying that burden. On the record in this case, that is a tall order. Pp. 8–10.
This is the nut of the issue from the ruling itself:
Here, the plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts.
I hate to say it, because writers like me are very much harmed by this ruling, but it does sound like a case with compelling evidence (the Twitter Files) was not properly conceptualized and argued.
The nature of the abuse of rights is analogous to shareholder suits. Experts are welcome to correct me, but my impression is that First Amendment suits are normally filed by publishers against the government, or alternatively, by voters where their right to speak in the so-called town square (in public spaces, in public meeting) is denied or unduly restricted. Here, the argument effectively that the government muscled the platforms to restrict the speech of various users.
So in my amateur lawyer opinion, the suit would have to be approached like a derivative shareholder suit, where shareholders step in to assert the rights of the corporation that it ought to be asserting but isn’t due to hopeless conflicts or laziness. There are certain standards the plaintiff have to meet, called “demand futility.” In layperson terms, the plaintiffs must establish that their demands have failed (posts were not restored, de-amplification was not reversed) or that the demand is futile (the platforms are not going to stand up to the Feds out of fear of various forms of retaliation. Recall that the Twitter Files did contain not-very-thinly-veiled threats).
Again I am not expert in this area. But the Section 230 waiver of liability for Facebook, Twitter et al rests on the law treating the platforms as passive conduits for user-submitted material, and therefore exempts from liability for content, on the fiction that they are not publishers making editorial decisions. A reconceptualized filing might try to pin the platforms on the horns of a dilemma: how can they be mere message board equivalents if they are moderating at scale and acceding to government arm-twisting? Does their conduct go beyond the legislative intent behind the liability protection? There seems to be no evidence that their legal departments even went as far as sending missives to the Feds questioning the First Amendment grounds of the institutionalize meddling.
Having said that, as Matt Taibbi stresses in his write-up, the Supreme Court went way beyond where it had to go to dismiss the case on Article III standing. It validated the Administration claims that stories about the Hunter Biden laptop as a Russian scheme and meaningful levels of vaccine injuries were disinformation.
And the Alito opposition is very persuasive. Alito argues that if you look merely at the case of one plaintiff, Jill Hines, the co-director of Health Freedom Louisiana, that contrary to the majority opinion, she more than met the Article III threshold for showing she had been harmed by the censorship campaign, that she was highly likely to have her posts censored and de-amplified, and that the (in this case Facebook) action was traceable to Biden Administration action (Alito includes many quotes from Biden officials and servile Facebook responses). So his dissent could be a roadmap for refiling the case. However, Alito’s big point is that First Amendment rights need to reflect the current state of technology (which is a basis for looking more critically at how to apply the Article III tests). This court is clearly loath to do so.
What was unusual about this case was that the Twitter Files had provided so much factual grist, the sort of thing damaged parties usually cannot access to establish that their suspicions are valid. Yet waging a proxy war via social media apparently succeeded in making everyone responsible, giving the Supreme Court as easy dodge by pointing out the plaintiffs had not targeted the immediate perps, the social media platforms.
As Taibbi concluded:
Murthy v. Missouri may not have been a perfect challenge to digital censorship, but I’m struck by the difference in the way the appellate judges in the Fifth Circuit responded to the evidence, as opposed to the Supreme Court. The appellate judges reacted like people. They read profanity-laden tirades directed at the platforms from the White House, and blithe recommendations regarding exactly how much this or that media figure should be deamplified and expressed instinctive revulsion and outrage, before collecting themselves and delivering a careful and limited ruling. The Supremes clearly did not find this conduct surprising or upsetting in the slightest, which is the problem.
The Supreme Court, irrespective of its partisan construction, has been shrugging at outrages to the Bill of Rights since 9/11. The national security establishment increasingly becoming a black box during that time has made these challenges harder. But kudos to the plaintiffs and their lawyers for attacking anyway, because terms like “traceability” and “nonjusticiable” and “special factors” are all the spy state has in its defense.
There are some possibilities for reversing or reducing this loss. One as mentioned above, is repleading the case. Another is for similarly-situated plaintiffs. RFK, Jr. had won a preliminary injunction for censorship of his anti-Covid-vax speech, but that was stayed pending the ruling on this case. It’s hard to think that RFK, Jr. can’t meet the standard of showing past and imminent prospective harm, given the impact of smothering mis social media voice on both his anti-vax foundation and his Presidential campaign. I have not had a chance to read his filings to see if he targeted the platforms and had a clearer history of wrestling with them over down-ranking and content-removal than the Murthy plaintiffs.
Another angle would for states opposed to the Supreme Court ruling to band together, draft model legislation, and pass free speech laws. Intuitively, there should be no bar to creating protections that now exceed those of the First Amendment. Perhaps they can remedy the refusal of the Supreme Court to clarify the position of social media platforms when they act as arms of official censors.
Finally, it would be amusing, if Trump wins, to see his Administration closely replicate the practices of the Biden Administration in stomping on speech it dislikes. Will the platforms suddenly discover the First Amendment if they face pressure from officials with opposed ideological view? This ruling has the potential to become a nest of hornets down the road.
00 Scotus on free speech June 26
