Posted on 06/27/2024 6:34:56 AM PDT by Heartlander
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.
Just a horrible decision.
and now you know how the nazis came to power
Even Alito's dissent in the case exposed the crippling flaw that should have gotten the case thrown out of any courtroom in the nation (the bold text is my emphasis):
The plaintiffs claim standing based on the "direct censorship" of their own speech as well as their "right to listen" to others who faced social-media censorship. Notably, both theories depend on the platform's actions -- yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts.
In other words ...
If there was any legally actionable conduct in this case, then one of the following two courses of action would be required:
1. The plaintiffs in the case sue FACEBOOK (not the U.S. government) for blocking content.
2. Facebook sues the U.S. government for censoring its content.
The Supreme Court ruled (correctly, in my opinion) that since the U.S. government never acted directly against the plaintiffs, these plaintiffs have no standing to take direct legal action against it.
FIFTH CONGRESS OF THE UNITED STATES: at the Second Session,
Begun and held at the city of Philadelphia, in the state of Pennsylvania, on Monday, the thirteenth of November, one thousand seven hundred and ninety-seven.
An Act in Addition to the Act, Entitled "An Act for the Punishment of Certain Crimes Against the United States."
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction, before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years; and further, at the discretion of the court may be holden to find sureties for his good behaviour in such sum, and for such time, as the said court may direct.
SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
SEC. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.
SEC. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, that the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.
Jonathan Dayton, Speaker of the House of Representatives.
Theodore Sedgwick, President of the Senate pro tempore.
I Certify that this Act did originate in the Senate.
Attest, Sam. A. Otis, Secretary
APPROVED, July 14, 1798
John Adams
President of the United States.
Your comment seems correct even though I sure don’t like Facebook censoring what people write.
IMHO, a post should only be deleted if it threatens someone or someone’s property. Let the goofballs speak (or write) and I’ll decide what to believe. That comment applies to Free Republic as well.
What I noticed about Alito's dissent is that he spends a lot of time describing how improper (even illegal) the government's conduct is, but really downplays the legal arguments in this particular case. I think he was 100% correct on the fact, but 100% wrong on the specific points of the law.
The old “lacks standing” dodge.
Et tu, Amy?
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