By: Brownstone Institute

In 1919, the Supreme Court used the pretext of crisis to overhaul the First Amendment as it jailed critics of the Great War. Over a century later, the Court has again fallen victim to the Beltway’s prevailing zeitgeist in today’s regrettable decision in Murthy v. Missouri.

The Court’s opinion, written by Justice Amy Coney Barrett, rejects the lower court’s injunction against many government agencies to stop leaning on social media companies to curate content, and does so on grounds that the plaintiffs lack standing.

The opinion rests on omitted facts, skewed perceptions, and absurd conclusory statements. The dissent, issued by Justice Samuel Alito and joined by Justices Neil Gorsuch and Clarence Thomas, masterfully recounts the facts of the case and the inconsistency of the majority.

Justice Barrett’s opinion completely ignored the Court’s decision last week in National Rifle Association v. Vullo. In that case, the Court held that New York officials violated the NRA’s First Amendment rights by launching a campaign to coerce private actors to “punish or suppress the NRA’s gun-promotion activities.”

Justice Sotomayor issued the opinion for a unanimous Court, writing, “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”

In Murthy, the majority did not even attempt to differentiate the case from its clear precedent in Vullo. Justice Alito, however, explained the ominous message the Court sent through the two opinions.

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. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by.

Further, the majority opinion is bereft of references to the perpetrators, their “high positions,” or their statements of coercion. Justice Barrett does not mention Rob Flaherty or Andy Slavitt – the two main henchmen behind the Biden Administration’s censorship efforts – a single time in her holding. The dissent, however, devotes pages to recounting the White House’s ongoing censorship campaign.

Justice Alito used the framework outlined in Vullo (which the majority likewise ignored), which analyzed four factors in determining whether government communications violate the First Amendment: “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.”

Last week, Brownstone addressed how those four factors clearly demonstrate that the Government violated the First Amendment in Murthy. Today’s dissent used the same framework and similar arguments.

Alito cited how “the White House’s emails were phrased virtually as orders and the officials’ frequent follow-ups ensured that they were understood as such.” Justice Barrett’s majority opinion relied on the presumption that social media companies already support censorship, so she could not find that the government’s speech was the cause of the injury. This, however, deliberately strayed from the precedent that the Court set just last week in Vullo.

Second, Alito explained that social media companies are “far more vulnerable to Government pressure than other news sources.” He wrote: “If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread.”

He then cited Mark Zuckerberg, who said the threat of antitrust lawsuits was an “existential” threat to his company.

This creates an all-encompassing regulatory authority that demands subservience from social media companies. The majority, however, only mentions this “existential” threat in passing, noting that Jen Psaki “spoke generally about §230 and antitrust reform” in July 2021 amid White House pressure to promote vaccine censorship. But evidently, Barrett and the rest of the majority did not feel inclined to address the issues that Justice Alito raised in dissent.

Justice Alito, citing the facts that the majority ignored, explained:

For these and other reasons, internet platforms have a powerful incentive to please important federal officials, and the record in this case shows that high-ranking officials skillfully exploited Facebook’s vulnerability. When Facebook did not heed their requests as quickly or as fully as the officials wanted, the platform was publicly accused of “killing people” and subtly threatened with retaliation.

Third, Alito noted that executives’ responses “to persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations.” Like Brownstone’s analysis from last week, Justice Alito cited reports from the House Judiciary Committee that reveal that Facebook officials kowtowed to Flaherty and Slavitt within hours of their demands.

Perhaps most absurdly, the Court ruled that there was no “substantial risk of future injury” because the Government has winded down its “frequent, intense communications” with the platforms. The majority wrote that there “is no more than conjecture” that plaintiffs will be subject to censorship in the future.

But as we enter another election year, can Chief Justice Roberts, Justice Barrett, or Justice Kavanaugh honestly think that these agencies – like CISA, the CIA, the FBI, and DHS – will temper their censorship efforts now that the Court has absolved them?

Will they allow dissent to flourish over the conflict in Ukraine, vaccine mandates, the rise of bird flu, or corruption allegations after they successfully stifled dissidents in the last cycle?

The glorious achievement of the Internet was to give everyone a voice. Social media made that operational. As time has gone on, government found a way in, via direct intimidation and third-party services plus revolving doors with agencies. The majority opinion here has found a way to codify this new form of censorship that threatens the whole idea of free speech itself.

The case now returns to the lower court for further examination, which will lead to more discovery and more evidence of government control of speech. Meanwhile, the range of views available to influence the public mind will grow ever more narrow over time, and the First Amendment could become a dead letter.

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