The Supreme Court's Standing Ruling In Murthy v. Missouri Is In Many Ways The Worst Possible Ruling For People Who Believe In Free Speech

The Supreme Court in Murthy v. Missouri ruled by a 6-3 majority that the defendants lacked “standing” when seeking an injunction against White House pressure to quell dissenting opinions on social media against official narratives.

William Jacobson from Legal Insurrection joins Tony Katz Today to discuss this blow to free speech in the U.S.

William Jacobson:

The lawsuit has to do with the government pressuring social media to censor opposing viewpoints, particularly when they came to COVID and all of those lockdowns, etc, which we now know that the viewpoints that were suppressed to a significant degree ended up being correct. A lot of these masking rules, other things were complete nonsense. We now know it. But they the social media didn’t allow people to say. And the question was when social media did that, were they acting as purely private parties in case the 1st Amendment doesn’t apply or were they acting under government pressure? And so, Missouri and a couple of other states brought suit. They were then joined in that lawsuit by some individuals, some doctors, and I think even the Gateway Pundit blog joined in. … What the Supreme Court just ruled, is in many ways the worst possible ruling for people who believe in free speech, which is that none of these people, not the states, not the individuals, none of them had a right to come into court. And so, they specifically said we’re not the majority, the six three majority said we’re not reaching the merits of whether the government violated the 1st Amendment because none of you have a right to come into court because you cannot meet the test for what is called legal standing. So federal courts now your listeners may know are limited to actual cases and controversies. They’re not there to issue opinions on things that are not actually in dispute and that the people in court don’t have a right to challenge and they and so that’s what happened.

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The six three majority said that because you are seeking future injunctive relief, you’re asking the courts to stop this practice going forward. You have to meet certain standards. You have to prove not only that you were harmed, but that you will be harmed in the future and that the relief you’re seeking will prevent that harm. And basically, the majority said, no, you can’t. You can’t show that. So, we don’t need to reach the merits.

Tony Katz:

The plaintiffs, who have not pointed to any past restrictions likely traceable to the government defendants, are ill suited to the task of establishing their standing to seek forward-looking relief. I found that to be just a, a fascinating kind of statement. This is not only Amy Coney Barrett saying that you don’t have the right to bring a lawsuit, that what you’re claiming doesn’t even make sense to us. That’s the way I took it. Not as a lawyer. That what you’re claiming here you haven’t pointed to anything that would make it seem like you’ve suffered. Isn’t the government colluding with big business that which is the dictionary definition of fascism? Isn’t that on its face enough?

William Jacobson

Well, I think you’ve got to show that you are the person who got harmed in and there were voluminous findings of fact by the District Court that were affirmed by the 5th Circuit. And Alito in his dissent went into this quite extensively. But the Supreme Court majority, the 6-3 majority basically said we’re not even going to really look at this. That, you know, you don’t have the right to get injunctive future relief because you haven’t, you know, proven enough. And so, they set a very high standard. Remember, they only got access to these documents because they had a lawsuit. They had to fight for a month, maybe even years to get the documents. You can’t just. You know, call up Facebook. There’s really no number to call. But you can’t just message Facebook, you know, support staff and say, “Hey, would you please give me the documents showing the government talking to you about me? “They’re not going to do that. There’s at most of these platforms, there’s nobody to go to, and they wouldn’t give it to you even if they did. So how are you going to prove it? How are you going to get into court? You know your accounts being throttled; you know people aren’t seeing your material. What the attorney generals here were able to prove was that it was a result of government pressure, and you know that was enough for the three dissent to allow it to proceed and it wasn’t enough for the majority. So, I think that you know it’s really frightening because now Facebook and X, formally Twitter and Instagram, which is part of Facebook and all the other platforms can talk to the government, can do what the government wants, and as a practical matter, there’s no way to challenge it even if it would be a First Amendment violation. The government is under the Supreme Court decision. You have almost no chance, close to 0 if not zero chance of being able to maintain a lawsuit over it.

Tony Katz:

The Biden administration of course, will take this as a victory. The problem for the Biden administration is one day a Republican is going to be president and they now have this decision to which they can utilize to their discretion. So, when you talk about this being the worst of all possible decisions, this is this is bad on bad. Just like we discussed the Rahimi decision regarding guns and prohibited possessors, one questions whether or not the case should have been brought at all. Is it your take that the case should never have come forward? Or is it your take the court, led in this case by Amy Coney Barrett, punted. They didn’t want to answer this question.

William Jacobson:

No, this is a case that should have been brought. They discovered enormous evidence of that. There was pressure and collusion. And so no, this was this was a case that needed to be brought because we’re all facing this. And so, what this basically means is that even if the government pressures social media, you’re right, everybody’s at their mercy. This is a case that had to be brought. This was a good case. This was a winnable case. And I think the Supreme Court messed up on this one on the issue of standing because they have now set a standard that is makes it impossible. And I think that Alito had a line, and I’m just paraphrasing now, that if the allegations and if the evidence that the District Court found to be persuasive is true, this is possibly the most important First Amendment case this court has ever faced. … This was a good case with a bad result, but not all bad results are cases that should not have been brought. This was a good case with a bad result. And people are at the mercy of social media. But it’s worse than that. Again, they’re not just at the mercy of Facebook’s rules. Facebook is a private company. We know that they are at the mercy of those rules being exploited by the government. As to your point, well, aren’t they worried that someday there’ll be a Republican president? No, they’re not worried because they know one Republicans won’t do what they do. We’ve had this discussion before when it comes to abuses of prosecutorial discretion and things like that. So, Republicans don’t do these the things that Democrats do. And additionally, Facebook would push back against a Republican administration doing that. So, if it was the Trump administration past or future going to Facebook and saying we don’t like this stuff that’s going on. Facebook would give them the finger, OK, as opposed to the Democrats where Facebook plays Footsie with them and goes along. So no, this is never a be afraid the Republicans will do to you what you’re doing to them. That never happens and it won’t happen because social media will protect the dissenting viewpoints that are hostile to a Trump administration. They will not protect viewpoints that are hostile to the Food and Drug Administration, and Anthony Fauci, now that was the Trump administration. A lot of this took place during the Trump administration, but Facebook was in agreement with those government policies. So maybe I should say it a different way. They will never push back about policies that are they are in favor of, they will protect those, and so, when the next Anthony Fauci goes to them and asks them to clamp down, it will depend on what the politics are.