Facebook jail and bans on X, formerly Twitter, may be ramped up after the Supreme Court ruled in favor of the Biden administration in Wednesday’s opinion in the Murthy v. Biden case. The Court held that social media users in two states – Missouri and Louisiana – were not qualified to seek relief from censorship through a legal injunction against the Biden administration in federal court.
The states lacked “standing,” the Court ruled in a 6-3 vote with perceived conservative justices John Roberts, a George W. Bush appointee, and Amy Coney Barrett, a Donald Trump appointee, joining the liberal justices.
The majority opinion, written by Barrett, stated that available evidence did not prove the government’s communications with Big Tech social media companies like Facebook, X, known as Twitter at the time, and more, were coercive or violated First Amendment free-speech rights.
Conservative voices in law, media and politics have blasted the ruling. Some suggest it’s a case that could make its way back to the Supreme Court if one or more people believe they have been censored and can show damages.
“I would tell you this is not the end,” Gov. Jeff Landry (R-Louisiana) said on Washington Watch Wednesday. “Unfortunately, it could be in a much more egregious fashion” when the case makes its way back to the High Court. “I don’t understand how the state of Louisiana cannot speak for its citizens,” he said.
Josh Hammer, attorney and syndicated columnist, said on American Family Radio it could take a year or two before the case reaches the Court again. “Hopefully, another plaintiff will try to give it a go, and we’ll get a ruling on the merits,” he told show host Jenna Ellis.
DeSantis weighs in
“The Court majority has rubber-stamped a way for the federal government to censor speech that it doesn’t like,” Florida Gov. Ron DeSantis wrote on X.
“The Court is telling would-be censors: You can’t directly censor speech, but if you pursue a sophisticated plan with enough subtlety, you can get away with doing indirectly what the Constitution clearly forbids you from doing directly.”
Regular court proceedings provided more than enough evidence for standing, Hammer said.
“It’s crazy. Thanks to discovery and litigation we saw the frequency with which Jenn Psaki and all the other various actors in the Biden administration, everyone from HHS to the FBI … were communicating with Mark Zuckerburg at Meta, with the former head of Twitter, various other Big Tech oligarchs; and we saw repeatedly how they named individual accounts that they wished to be either shadow-banned or outright banned and kicked off the platform in its entirety,” he said.
Ellis, a former attorney for Trump, said “standing” has become a way for the Court to avoid an issue. Landry, a two-term attorney general in Louisiana before becoming governor, agreed. “As usual, the Court, when it's faced with these tough decisions, takes this off-ramp of standing, which I think is really inexcusable,” he said.
Conservative justices Samuel Alito, Clarence Thomas and Neil Gorsuch highlighted the significance of the case in their dissent.
"Alito, Thomas, and Gorsuch were the three in the dissent – and their dissents were brilliant," said Ellis. "To say that this is something that we absolutely need to address [and that] it's a critical First Amendment issue. It's very discouraging that the Left prevailed on this.”
Schneider: Plenty of censorship going on
Barrett’s majority opinion is unfortunate timing for Trump given tonight’s presidential debate, Dan Schneider, of MRC Free Speech America said. He tells AFN that evidence wasn’t lacking. He suggests there was so much of it, in fact, that the justices felt overwhelmed.
"Amy Coney Barrett, writing for the majority, actually said that the standing issue is that there is so much censorship going on in the Biden administration, that it was too difficult to conclude which censorship caused which kind of harm," Schneider said. “This is a horrible decision. It has taken a knife to the heart of the First Amendment. This is tragically bad.”
With the election season in full swing, the MRC spokesman says it gives the Biden administration a huge green light to put its finger on the scale.
Hammer certainly felt overwhelmed trying to understand the ruling. “I guess they’re saying the individuals’ names didn’t appear often enough in the evidentiary track record. It’s crazy,” he said.
Administration officials repeatedly named individuals' accounts that they wished to be shadow-banned or entirely removed from various social media platforms, Hammer noted.
Ruling ignores precedent
According to Hammer, the decision reversed precedent on the issue of standing.
“I was thinking back to the 2007 case of Massachusetts v. EPA, another ‘standing’ threshold case where the Commonwealth of Massachusetts essentially sued the Bush-Era EPA for certain environmental regulations, and their theory of standing for the entire state is they didn’t want the receding shoreline in Cape Code and Martha’s Vineyard,” Hammer said.
The Court eventually ruled that the Environmental Protection Agency had the authority to regulate greenhouse gas emissions, such as carbon dioxide, as air pollutants under the Clean Air Act.
Massachusetts and 11 other states plus several cities lost, but they were allowed standing, and the case was eventually judged on its merits.
The liberal justices today lack intellectual consistency, Hammer said.
“Back then the liberal justices, along with Anthony Kennedy as the moderate, were all too willing and eager to grant this extraordinarily liberal and dubious view of standing. It’s funny how inconsistent these liberal justices in particular are when it comes to standing doctrine.”
