Supreme Court Dismisses Challenge Against Biden Admin Pressuring Social Media to Censor Speech
The majority held that the plaintiffs did not establish Article III standing. The plaintiffs requested “forward-looking relief.” Therefore, they had to prove they would face “a real and immediate threat of repeated injury.”
The Supreme Court ruled 6-3 to toss Murthy v. Missouri, which accused President Joe Biden’s administration of pressuring social media companies to censor COVID “misinformation.”
Missouri and Louisiana, along with five citizens, filed a lawsuit against the administration in 2022.
Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett voted in the affirmative.
Barrett authored the majority opinion.
The majority held that the plaintiffs did not establish Article III standing. The plaintiffs requested “forward-looking relief.” Therefore, they had to prove they would face “a real and immediate threat of repeated injury.”
They also rejected the plaintiffs’ arguments because social media platforms censored material before communications with the Biden administration and still do after communications ceased to exist, so it’s all good.
“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,” wrote Barrett. “Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden. On the record in this case, that is a tall order.”
It didn’t help that the plaintiffs did not provide any links between restrictions on their social media to the White House communications with the companies:
The state plaintiffs, Louisiana and Missouri, refer only to action taken by Facebook against a Louisiana state representative’s post about children and the COVID–19 vaccine. But they never say when Facebook took action against the official’s post—a critical fact in establishing a causal link. Nor have the three plaintiff doctors established a likelihood that their past restrictions are traceable to either the White House officials or the CDC. They highlight restrictions imposed by Twitter and LinkedIn, but point only to Facebook’s communications with White House officials. Plaintiff Jim Hoft, who runs a news website, experienced election-related restrictions on various platforms. He points to the FBI’s role in the platforms’ adoption of hacked-material policies and claims that Twitter restricted his content pursuant to those policies. Yet Hoft’s declaration reveals that Twitter took action according to its own rules against posting private, intimate media without consent. Hoft does not provide evidence that his past injuries are likely traceable to the FBI or CISA.
The majority also rejected future harm because communications between the White House and social media companies has died down:
But even [healthcare activist Jill] Hines, with her superior showing on past harm, has not shown enough to demonstrate likely future harm at the hands of these defendants. On this record, it appears that the frequent, intense communications that took place in 2021 between the Government defendants and the platforms had considerably subsided by 2022, when Hines filed suit. Thus it is “no more than conjecture” to assume that Hines will be subject to Government-induced content moderation.
The majority also shot down the plaintiffs’ “right to listen” theory:
The individual plaintiffs argue that the First Amendment protects their interest in reading and engaging with the content of other speakers on social media. This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship— at least so long as they claim an interest in that person’s speech. While the Court has recognized a “First Amendment right to receive information and ideas,” the Court has identified a cognizable injury only where the listener has a concrete, specific connection to the speaker.
The plaintiffs tried to prove this point by insisting “hearing unfettered speech on social media is critical to their work as scientists, pundits, and activists.”
Barrett pointed out that they did not provide the court with “any specific instance of content moderation that caused them identifiable harm.”
“The state plaintiffs assert a sovereign interest in hearing from their citizens on social media, but they have not identified any specific speakers or topics that they have been unable to hear or follow,” added Barrett. “And States do not have third-party ‘standing as parens patriae to bring an action against the Federal Government’ on behalf of their citizens who have faced social-media restrictions.”
Dissent
Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented.
“Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, see National Rifle Association of America v. Vullo, 602 U. S. 175 (2024), and that is what happened in this case,” wrote Alito.
The majority claimed the plaintiffs did not provide proof of future harm.
However, Alito stressed that online platforms are more vulnerable than the old media:
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. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company. And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.
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.
No future harm? How about the new rules?
“Not surprisingly these efforts bore fruit. Facebook adopted new rules that better conformed to the officials’ wishes, and many users who expressed disapproved views about the pandemic or COVID–19 vaccines were ‘deplatformed’ or otherwise injured,” Alito continued.
Alito also pointed out that Facebook cowering to the White House is not the behavior one expects “from an independent news source or journalistic entity.”
Alito wrote:
Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to know how they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. The picture is clear.
The dissenters return to future harm, concentrating on Hines. She had to prove to the courts she would face “‘real and immediate threat of repeated injury’ that existed at the time she sued-that is, on August 2, 2022.”
I emphasized that sentence for a reason: “But no matter what test is applied, the record clearly shows that Hines was still being censored when she sued—and that the censorship continued thereafter.”
SCOTUS has affirmed and reaffirmed for 60 years that “Government may not coerce or intimidate a third-party intermediary into suppressing someone else’s speech.”
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Comments
Haven’t read the opinions or the filings, but this is a shockingly bad outcome. Kavanaugh, Barrett and Roberts joined the crazies for this.
Appalling. We need legislation to render these tech companies the equivalent of utilities so they cannot engage in any of these editorial/censoring activities.
We are setting the stage for how the future will work. To allow this, intolerable.
Any social media company with more than 10M users should be treated like a common carrier, just like the telephone companies.
Yes and no. Telephones do not default to openly published communication. They are, by majority, private lines. The parallel with social media would be private messaging.
But I do agree that reform and a new set of constraints on government interference need to be put in place for this unique medium.
Ever have a “party line”? Some in-law relatives of mine did. They had to listen to the rings, as the number of rings told them who was meant to pick up. But anyone could pick up, and get on the line for the conversation. The fact that the calls weren’t actually “private” and could involve other parties did not make the service non-telephonic. It was a telephonic communication that sent notices to several parties of an incoming communication, and every party who received the notice could access the communication. This seems, to me, surprisingly like social media.
I think you hit the nail on the head for a real solution, Congress doing its job in passing legislation!
Not a fan of legislation via the bench and am somewhat ambivalent about this outcome.
The problem is that every Democrat will vote against the freedom of other people’s speech.
1984 has begun.
Quite awhile ago, we just didn’t realize what was happening.
it was in fact realized
the gop bailed out on us pro americans
40 years in the making. Democrats play the long game.
“…it appears that the frequent, intense communications that took place in 2021 between the Government defendants and the platforms had considerably subsided by 2022,…”
Yes, yes. Of course. The intense bank fraud by defendants had considerably subsided by 2022, so this court will toss the case.
The intense drug smuggling by defendents had considerably subsided by 2022, so this court will toss the case.
The intense cyber security hacking by defendents had considerably subsided by 2022, so this court will toss the case.
Yes, yes. Of course. Courts routinely toss cases based on this ‘reasoning.’
You forget that this is only about a preliminary injunction. And in all of those cases you would indeed not get an injunction. Nobody has suggested that the case should be tossed; but on the evidence presented the majority did not find grounds for an injunction, for which the barrier is quite high.
Another thing you’ve forgotten is that in all your examples you have already established that there was fraud, smuggling, hacking, which had subsided but not disappeared. In this case what had subsided was not the coercion the plaintiffs had alleged, but only the communication between the government and the private companies, which in itself is completely legal and presumed innocent. The plaintiffs alleged that some of this communication had carried coercive messages; the majority said well, the communication has died down, so even if there were coercive messages among it earlier, there may not be any now, so you don’t get a preliminary injunction.
The government is no ordinary respondent. It operates under a restrictive set of rules that both enumerate its authority and prohibit it from certain actions. What harm is caused by telling the government to cease activities that it is not authorized to conduct and specifically prohibited from conducting? What defense is there (and what defense should there be) to such an order? The government can’t plead to be allowed to continue to do that which it shouldn’t be doing. If it’s guilty of the conduct, it must stop. If it’s not actually involved in such conduct, then the court’s order has no practical effect. No harm is done to anyone’s interests with such an order, as government has no interests in unconstitutional acts.
It hasn’t happened yet to you so we cannot do anything.
And after it happens to you, we canoot do anything.
Wrong. Preliminary injunctions are entirely about what hasn’t happened yet. To get one you have to prove that it’s highly likely to happen; that’s intentionally a tough thing to prove. After it happens you can sue for damages, and the plaintiffs are doing so.
Please stop lecturing. It’s pathetic. Especially when you misconstrue the point. Love it when someone misunderstands then corrects. The comment had NOTHING to do with the injunction. But that is what you discuss. Lame.
Here we go again. Either you have no standing, or can’t sue until you are harmed, at which point it is too late. No harm indeed.
What the heck are the Dems complaining about with the SCOTUS again?
Lack of “standing.” The new excuse to avoid actually making reasoned judgements based on the Constitution. I have to wonder what “they” have on the justices to make them rule this idiotically on what seems to be a recurring basis.
It is obvious that the Justices did not see this as the right case to make a definitive ruling on the merits because the connection between actual censorship and the Administration was too fuzzy and indirect. They want a better case, and I’m sure they will eventually get one.
They weren’t asked to rule on the merits. This case was entirely about a preliminary injunction. The underlying case is proceeding in the lower courts.
Actually, it’s worse – the Court acknowledges that harm has already occurred – from Amy Phoney Barrett in the excerpt in the post:
No, the court did not acknowledge that harm had occurred, even to Hines. It merely acknowledged that Hines had a better case than the other plaintiffs, and was more likely to have been harmed. If she can prove it in the ongoing case she will get damages. But Barrett said that even she could not demonstrate that the harm was likely to continue, which is what is needed in order to get a preliminary injunction.
Remember that an injunction is not harmless. What if the court were to issue the injunction and then the plaintiffs fail to prove their case in the lower court; what if even Hines ends up unable to prove that she suffered any harm? Then the injunction will have been for nothing, and the government will have been harmed unjustly. So to get an injunction the plaintiff has to prove that it’s highly likely to be needed; that future harm is highly likely.
Barrett was, at least, admitting that there may have been harm to one plaintiff. She then excused the need for an injunction based upon an “it may not occur again” rationale. She would have made the same excuse even if she had admitted that harm was done, because her logic would have demanded it.
Government, and certainly the same administration, is always positioned to act in ways similarly, if not identically, to the ways it has acted in the past. This is especially so when circumstances arise that pose similar challenges and opportunities as those that existed when the initial harm was caused. In this case, the situation was the pandemic, in which the administration had an interest in controlling a narrative. In the upcoming situation, the presidential election, the administration will have an interest in controlling the flow of information and opinion, just as it did during the pandemic. There is nothing in the way of the administration’s repeating its conduct. That was the purpose of the injunction request!
This is the problem in selecting Justices from lists that are prepared by the Federalist Society. They’re not picking jurists who restrain government. They’re picking jurists who restrain government only in ways that protect big business. That is a hugely important distinction.
Big Corporate was on the side of the government in this case because keeping people quiet who are criticizing their Golden Goose – oppressive vaccine mandates, in this instance – is no bueno for them. That jeopardizes the bottom line. So, the Federalist Society ‘Conservatives’ voted accordingly…in a way that protected Big Business interests.
You point out a very important and quite accurate distinction. On the other hand no single Justice is gonna be everything we want in every case.
True. But, Kavanaugh and Barrett are creating an unflattering track record, in this regard. Conversely, while Gorsuch is a bit of a loose cannon on social issues, when he wanders off the reservation, he seems to favor the more libertarian side of things. I can live with that even if I don’t like it. I’ll take that over a Justice working to reinforce collusion between Big Gov and Big Biz. That’s the more dangerous combination.
Agree 100%.
I agree with your astute distinction. Further, I look back at the supremes abdicating the multi state suit that claimed to abridge voter rights of states who followed existing laws. That too should have been a landmark case but for the decision to run away.
Trump made the selections, not the Federalist Society. Put the blame where it belongs.
The same justices you were praising after Dobbs, JR?
TDS knows no hypocrisy.
They’re vaxxed to the max, yet pretend to be critical of “Trump’s vaccines,” while having no complaints about the current administration’s continued support for, and promotion of, the “safe and effective” vaxxes. It’s just an excuse to bash Trump, giving them something to do on their phones while waiting for their next jab.
Quit upvoting yourself.
I’d call you a tool, but tools are actually useful.
That is not true at all. The FedSoc has never been a shill for big business. On the contrary, big business is always a friend of regulation.
tossed in on Standing grounds
Barrett , kavanaugh roberts should have read the record as detailed in Alito’s dissent.
Should not have been a hard case – Definitely 1a violation
They obviously did not see this as the best clear case to make a definitive ruling. They need a better case, and I have no doubt that they will eventually get one. It might take years, though.
No ruling on a preliminary injunction could be definitive as to the merits of the underlying case.
I was hoping for a better decision here, not this John Roberts-style opinion.
But in anticipation that Cavanaugh and Barrett would cave, I could see one way to get such a wretched decision overturned.
If Trump is elected, State, Homeland Security, DOJ, “OGA,” will have to apply constant pressure against social media platforms to suppress anyone and anything critical of the Trump administration. While constantly citing this decision as authorizing their demands. Until Facebook, Google, et al. sue them.
Yep. The quickest path to overturning bad legislation or CT rulings is to make a concerted effort to shove the consequences up the posterior of those who believed the consequences would only benefit them and never harm them directly.
Yes. The new rules seem to be clear. When it is our turn, they need to feel the pain twice as hard.
Game theory says this is the best way to cause a cheating opponent to return to adherence to the rules. Simply waving the rules in their faces is not effective.
This ruling seems incompletely reasoned. If a person must show that their right to ‘hear’ the speech from a speaker was interfered with then why wouldn’t a de monetization of a platform on YouTube qualify? Clearly the content provider has lost revenue opportunities and is thus their financial incentive to produce speech is reduced with a subsequent ‘chilling’ impact. If no one makes the content/speech I am interested in hearing b/c they got squelched by YouTube via removing ad revenue or worse banned from the platform that would seem to qualify under the logic of this ruling.
I wouldn’t say it was reasoned at all. Just another dodge because (for some reason) they were afraid to make the right decision (Barrett and Kavanaugh).
That seems like a fair point to me. I think you are onto the scent of why the CT is so hesitant about making big rulings re tech; they gonna upset a lot of apple carts when they eventually do it. Hopefully a Congressional majority can coalesce to ensure:
1. all user data to include traffic history and purchase decisions much less PPI belongs solely to the user, can’t be taken, skimmed, collected, brokered fired or sold without either a valid search warrant or specific user permission for each instance no blanket terms of service BS that no one reads.
2. All online platforms without a pay wall restriction to view the content are the equivalent of the town square public bulletin board where anyone can post any lawful content without any platform restrictions. IOW YouTube can set whatever censorship rules and restrictions it wants when it operates as a private members only club with no general free public admission. But where it has ‘free’ pubic facing content then that portion of YouTube is open game for all to post lawful content to include not removing monetary incentive/ad revenue streams for content creators; a free market for viewers.
That would disrupt the current model and the tech companies gonna keep fighting like hell to avoid it alongside their ‘friends’ in gov’t and those who are unwilling to be blamed for such a disruptive step.
I think you misread that part. The Court cut the legs out from under the claim that there is any “right to hear” at all.
Henry,
From the Majority Opinion ‘the court has identified a cognizable injury only where the listener has a concrete specific connection to the speaker’.
That seems to qualify a regular ‘listener’ even if not a subscriber to a particular content provider. After all if we shift from online to IRL and consider a Church Pulpit being shutdown due to Federal govt interference/pressure on the landlord (nice Sec 8 property you have across town be a shame if…) or the town council (no more grant $ for you unless…) In these IRL examples of pressure it becomes very clear they are improper so why wouldn’t the same hold online?
A person would be denied the ability/right to ‘listen’ to a sermon which was squelched whether they were a tithing member of the congregation, a Christmas and Easter ‘Christian’ or something in between. Seems very analogous to a someone being denied the right to ‘listen’ to an online secular presentation.
Exactly.
“It’s okay for the government to tell the landlord to silence the preacher because the parishioner has no specific connection to the landlord.”
WTF?
No, it’s not OK, but the parishioner has no standing to sue over it, because he has no connection to the preacher. The preacher has been harmed, so he has standing to sue the government for indirectly causing him to be silenced. Some random person who might or might not have stopped in to hear the sermon had the landlord allowed it has not been harmed, and thus has no standing to sue the government. Now if he were a paid subscriber, let’s say he supports the preacher on patreon so he can continue preaching, then he might have standing to sue the government for indirectly silencing the preacher.
‘the court has identified a cognizable injury only where the listener has a concrete specific connection to the speaker’
This seems to describe a “subscriber” to a YouTube channel, a “friend” on FB, or a “follower” on X.
Yes but not just them. When we apply the same thing to an IRL pulpit and religious communication being squelched we see that not just the regular convergent who tithes each week is having their opportunity to ‘listen’ interfered with. The casual non tithing only occasional lister would also be impacted by a shutdown of the pulpit. And importantly in 1A it does NOT have to be a complete or even direct squelch on communication it can be an action that makes folks hesitant to speak aka casting a chilling effect.
IMO in the same vein a casual listener to a podcast or occasional reader of a particular site/thread is also being interfered with. It seems absurd to me that we would countenance a govt action to chill.speech, which is clear here, much less more robust actions that are in the damn trial CT record and somehow come to the conclusion there’s nothing to see or be done due to.standing.
The problem IMO is a.judiciary that refuses to use the Constitution as the allowable limits of govt action and require the govt to make a case to proceed with any acts that in the presence of a harmed individual would be unconstitutional. This is far too permissive a viewpoint when viewing govt actions to impede or curtail liberty. Mine is a minority view.
You misunderstand. This so-called “right to hear” was something alleged by some of the plaintiffs. The court pretty much rejected it outright, but said even if such a right were to exist, you’d need a much better showing than you have in order to get an injunction to protect it.
I understand what the CT ruled. I am making the argument that their logic is flawed. Using the example of where a govt squelched a religious speaker at an IRL pulpit it seems like a much easier call for the CT than a secular speaker online. Feel free to disagree I ain’t gonna convince nor even try to convince folks who think this ruling was OK. Just putting out my own opinion.
Amy is a disaster, Roberts we knew
She is a disaster.
Amy is what should we have expected when Trump appointed her. Amy attended Notre Dame Law School on a full-tuition scholarship and was an executive editor of the Notre Dame Law Review. Very Liberal.
Rejection based on standing is the judicial equivalent of yelling, “Not my job!” While pulling a blanket over your head.
They didn’t rule on the merits because that would have come out different than the way they wanted. So they simply ran away.
No, they didn’t rule on the merits because that was not before them.
And the requirement for standing is in the constitution. Courts can only rule when there is a case or a controversy before them. So before ruling on anything they must first determine whether there is one.
In this instance, Milhouse, I believe irv is referring to the merits of the injunction request, and not to the merits of the underlying action.
Strike my last comment.
“Therefore, they had to prove they would face “a real and immediate threat of repeated injury.”
I genuinely don’t understand this. As Alito points out, there was already AMPLE evidence of prior injury introduced in the record. Wouldn’t that alone be enough to demonstrate a real and immediate threat of repeated injury?
When a woman stands before a judge to get a restraining order pm her abiser and she’s obviously suffering from recent signs of physical abuse, the judge doesn’t say, ‘But, can you demonstrate a real and immediate threat of repeated injury?’ Of course not. The CURRENT harm is prima facie evidence of a threat of future harm, that’s why they grant those restraining orders ex parte.
That should have been…’restraining order on her abuser ….;
Good analogy and point. The Court’s obsession with establishing future harm is misguided and myopic. The record contains copious evidence of current harm, and, there is no basis whatsoever to presume good faith and restrained behavior on the part of either the White House, or, federal agencies and departments.
I agree, but unfortunately courts give government departments leeway they never give to private actors. When it’s the government good faith is always assumed, that’s why FBI agents can enter interview transcripts as evidence in criminal trials after destroying the original recordings, making verification of the transcript impossible. In a criminal prosecution that at least pretends to offer justice that should get the charges thrown out, and you or I certainly couldn’t do that without being charged with destruction of evidence.
No, it isn’t. Not on its own. It can create a strong presumption, but not an absolute one. In Barrett’s words:
What is it about the circumstances (same administration in power, same Constitution and laws in effect, same demand from the administration’s supporters to stop “misinformation” and to “protect our democracy”) has changed? All of the circumstances (including a desire to control the narrative of an important event) remain. How can anyone not see that the potential exists for continued abuses? Before government attempted to stifle free speech on social media such an argument may have held water. But once having demonstrating a willingness to abuse it power, there’s no logical reason to think government won’t do so again. Is there an instance of the government voluntarily changing its behavior to reverse an abuse of its power? If there are any, they’re exceptions that prove the rule.
Attorney General Andrew Bailey
@AGAndrewBailey
My office filed suit against dozens of officials in the federal government to stop the biggest violation of the First Amendment in our nation’s history.
The record is clear: the deep state pressured and coerced social media companies to take down truthful speech simply because it was conservative.
Today’s ruling does not dispute that.
My rallying cry to disappointed Americans is this: Missouri is not done.
We are going back to the district court to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all.
Hugely disappointing decision. Especially, coming on the heels of the decision a few weeks ago, holding that unrealized, paper and ephemeral capital gains constitute taxable income.
What?!?! I missed that decision. Pray tell!
https://taxfoundation.org/blog/supreme-court-tax-case-moore/
Make no mistake. Despite the majority’s rhetoric about the scope of its holding being limited, this decision will be swiftly exploited by the vile Dhimmi-crats to institute a “wealth tax,” ASAP.
Alito mincing no words in what SCOTUS has done with Murthy ruling:
“The Court…permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think”
https://x.com/mirandadevine/status/1805981054966063591
Could we please stop pretending the constitution addresses any current free speech issue in a way actionable without either new regulations or laws in place?
Freedom of speech in 1800 did not include a young lady being permitted to wear a short skirt, freedom of speech in 1900 did not include the right to burn the American Flag, freedom of speech is a very highly evolving concept we could either be part of writing the regulations of where it ends and where a lack of protection begins or we could be censored out of the public square permanently.
The Courts are not a panacea or alternative to governing they interpret the law as it is written today.
BS. The Constitution is most clear here. Supreme Court Justices will sometimes pretend that it is not.
The Constitution is clear but social media are new. SCOTUS needs a better case to rule on the merits. Have no doubt that the Feds will expand censorship and eventually produce a good case.
We just lost in front of the supreme court we dominate.
The constitution has ALWAYS been interpreted in context.
Today a girl can wear a halter top and mini-skirt.
Take the same girl back to 1799 and she will be arrested in seconds for that with the supreme court affirming the constitutionality of the arrest if she manages to appeal it to the supreme court.
For gods sakes TODAY in 2024 we still have the MILLER TEST.
The Miller Test is the definition of ambiguity.
Constitution does not, it never has, was never intended to be, and never will be free speech absolutist and the Supreme Court will never pretend it is.
Instead of burying your head about a document that today permits the Miller Test for censorship, and allows government to make it clear to corporations what it feels is disinformation maybe you should be building support for laws that will help define when free speech ends?
What isn’t unconstitutional could very easily be against federal law without a constitutional amendment.
Don’t believe me look at the free speech regulations of the 18th, 19th, and 20th century they are real and massive, and the reason they don’t still exist is the United States as a society made new decisions about location freedom of speech ends not because the constitution was changed.
The question here is less than about free speech than it is about the government’s authority to prevent speech. There was nothing illegal about the speech it suppressed. Speech was oppressed as a matter of policy to promote government policy goals and a political agenda. If the government is allowed to suppress speech because it runs counter to its own policy and agenda goals, it can shape public opinion about those goals, making a mockery of “democracy” as government converts the citizenry from independent moral agents and thinkers into rubber stamps.
But the question here is not Elon Musk burning a Blue Origin flag, or Mark Zuckerberg showing his nipples in public. It is straight out basic speech and press censorship.
Actually, no. It is pressuring an intermediary to censor. It is not the same as pressuring a newspaper or taking down a personal website. Your social media posts do not belong to you. You don’t sell advertising on those platforms. You are not paying for your facebook page.
Whether or not the post or page belongs to the individual is not relevant. The government wanted them taken down. This is prohibited, no matter who owns the platform. Under their TOS, platforms were only able to remove posts prohibited by their TOS. Platforms bent or changed their TOS to comply with government requests. Those “requests” were unconstitutional no matter who owned the posts, because government’s aim was an unconstitutional goal.
The only decision you have that would say there is something wrong with that in the public square by private actors is Marsh v Alabama which has been binding law for a hundred years but was decided long before the internet and has never been applied to the internet because there are neither regulations declared by executives, not laws passed by legislature to do so.
If you don’t like that Marsh v Alabama isn’t binding online (how could it be exactly? It was a decision before computers existed) maybe you could support passing a new law to make it so which is exactly what I just advocated?
Either the public has a right to free speech in the public square or the private corporation has a right to do whatever it wishes with it’s property. Freedom of Speech is usually complex, pick a side.
For the same reason that a repeating rifle is covered by the 2A or the computer/TV/Radio by the 1A… b/c the tech platform and/or location doesn’t matter. What matters is applying the parameters and logic of the prior precedent/Constitution around the new tech/circumstances. Marsh says no censorship and no suppression of otherwise lawful speech in public spaces. That space could be the IRL town square or a digital public square… the key is if it is generally open to the public v behind a pay wall, in which case it would be a private members only area. At least IMO which unfortunately seems to be in the minority for now.
I 100% agree Marsh logically should apply to the internet, I wish it to apply to the internet. I am a giant advocate of Marsh v Alabama and I believe that is our path towards a free public square with free discourse.
All we have to do to make it so is to pass a new law saying it does, which is what I advocate now.
I think we are 100% agreed on this. The big issue is the courts don’t usually just apply logic that way when new technology comes in (free speech isn’t the only way the law hasn’t caught up to the internet) so we should be using our legislative power.
A lot of Republicans however seem to have become completely allergic to using power including to extent freedom of speech.
About guns 13 states outright ban machine guns with the blessing of the supreme court ruling they are unusual and could be banned, and federal regulations I was wrong to oversimplify and say illegal but good luck getting the ATF to consent to you owning one (I think you saw the story showing the experts have decided that if you served in the navy or in your case army you are a terror threat so both of us are on a list).
Guns are without doubt regulated in this country the 2nd amendment is not absolute, if it was you would be allowed a machine gun without ATF permission, and Wisconsin would not be permitted to ban machine guns.
You do realize that CT precedent has the force of law so Marsh should be binding already? In fact the US.Constitution is the Supreme Law so we already have every bit of ‘law’ needed. What is sorely lacking is the will to use the two things.
Any future statute will be just as ignored as the Constitution or CT precedent without the will to apply it.
It shouldn’t matter.
In practice the court system has not caught up to the internet, and you get dramatically different interpretations of where the internet fits into public or private, what could you do involving it from different courts.
I agree with you in principle, adding in a law that makes legal practice catch up now instead of 10 years from now, can’t hurt and would help a great deal.
Danny,
I will grant the Possibility that such a.statute Might help. I reject your contention that such a statute is necessary or that in the absence of such a statute there isn’t an existing basis to halt govt trampling the Constitution.
It comes down to two things. The view that the powers/authority of govt is limited not expansive (especially on questions of individual liberty) and the willingness of CT to use the tools they have to prevent it. No amount of additional legislation is worth spit without those two components.
Danny is repurposing the argument that his pals on the left makes regarding the 2A and muskets.
Danny will change his tune once the federal censors come after and squash him.
Your an idiot
My tune is WE NEED TO PASS A LAW MAKING MARSH V ALABAMA APPLY ONLINE STFU AND STOP RESPONDING TO ME IF YOUR NOT READING WHAT I ACTUALLY WROTE YOU ASSHOLE.
I mean seriously you are saying I will change my tune of change the law to stop facebook from being permitted to censor the American Public Square?
I am sorry but the courts ruling makes sense, I was skeptical that federal coercion could be involved with there being coercion and the court simply affirmed that.
It is time to use our legislative power instead of pretending the law is free speech absolutist.
I am the one advocating doing something you are the idiot advocating against, or maybe you are just an asshole who doesn’t read what you criticize.
“Guns are without doubt regulated in this country the 2nd amendment is not absolute, if it was you would be allowed a machine gun without ATF permission, and Wisconsin would not be permitted to ban machine guns.”
No consideration given that the NFA might be unconstitutional, and that State restrictions on firearms have various constitutional problems, including interference with articles that move in interstate commerce, subject matter over which Congress has exclusive legislative jurisdiction?
A law’s mere existence is not proof of constitutionality. Neither are failed challenges. When a court rules against a challenge, it does not say “the law is constitutional.” It says, “the law is not unconstitutional for the reasons presented by the plaintiff.” When a law withstands a challenge, the failure of the challenge does not prove the law is immune to all challenges.
Yes the left argues we need laws to protect freedom of speech from Mark Zuckerberg so the opponents of the left can voice their opinions in the public square without censorship, and all leftists donated money to the Trump campaign in 2020, voted for him 2020, and donated to him the day he was convicted and are planning to vote for him again YOU IDIOT.
Your irredeemably stupid, I GAVE EXAMPLES of how the actual freedom granted by the first amendment evolved RADICALLY since the time of the founding fathers.
I could furthermore point out TODAY WE HAVE THE MILLER TEST.
Do you know or care what that is? I highly doubt it.
Your an idiot and your idea that the constitution addressed the internet centuries before it was invented is an opinion I don’t think anyone in the legal profession has.
By the way you moron the 2nd amendment has limits for example IT IS ILLEGAL TO OWN A MACHINE GUN.
The SUPREME COURT determined the 2nd amendment does not protect “unusual” guns. It also allows state governments to revoke that right (i.e. for criminal convictions) and severely restrict that right (i.e. look at what you need to go through to own a gun legally in New York).
All your stupid statement shows is you do not know anything about either constitution, or me.
Our side has morons like yourself.
Where did I say the Constitution addressed the internet, Danny? It addressed freedom of speech which was clearly violated by the government coercing private companies to do something it cannot.
All I did was accurately state that you’re making the same argument that your commie pals make regarding the 2A and muskets. And you did.
Next, you’ll be arguing that freedom of the press only applies to literal presses or something equally as stupid. The founders never thought of automation! Derp!
Could your daughter wear a short skirt in 1799 without being arrested?
What freedom of speech in fact means varies dramatically and has morphed dramatically in American Law.
If you want freedom of speech on the internet protected you need a law to do it.
There is no evidence of coercion from the government, all that has been produced is that the government gives these corporations it’s own opinion and that there is censorship by private organizations.
Now if there was a law restricting the governments right to make it’s opinion known….and restricting the ability of private corporations censor public areas online……
You seem to just hate the idea of doing that because you are booing and downvoting that idea and for pretending the constitution already requires that.
When exactly?
Was it when the Miller Test was imposed for when the state could censor?
Or was it Marsh v Alabama?
If Marsh v Alabama did that case happen a hundred years prior to the internet with the result that the internet has never been governed by that decision?
Maybe we should update the law and say yes it does.
Passing new laws that address the problems of today isn’t just not evil it is exactly what the founding fathers intended. They never intended the Bill of Rights to be the sum total of the America Legal System.
“By the way you moron the 2nd amendment has limits for example IT IS ILLEGAL TO OWN A MACHINE GUN.”
No it isn’t.
Moron.
Are you claiming that the 13 states that ban all ownership of machine guns are not part of the United States?
Second all machine guns manufactured after May 19, 1986 are illegal
I oversimplified it but if you get a misdemeanor good luck owning one.
Danny, courts are influenced by society and government policy goals. Slavery was once defended by our courts. Do you think slavery is only wrong today because the Constitution was amended? If we think more permissively, this only means that society has evolved in the 200+ years since the Constitution’s ratification. The Constitution was unfortunately not adequate to cause judges to abide by its language. Almost immediately after its ratification, the federal government, in contradiction of even then-current understanding of the First Amendment, enacted the Alien and Sedition Acts. Government action is never proof the act’s constitutionality. If it was, we would have no need of courts, because bringing complaints of “unconstitutionality” would never be entertained.
Citing a statute’s mere existence as evidence of its constitutionality is not a convincing claim.
Before even starting the response the civil war ended slavery not the supreme court. If it had not ended by the civil war it what would have ended by legislation which is how it ended in the free states prior to the civil war.. Ideally the Supreme Court would have seen slavery as the abomination it was and ordered it be ended. Instead what challenged slavery was legislation. We really need to get back to legislation, EO, and overall governing. I don’t want to just rely on the supreme court eventually interpreting the constitution in a new way and hope it is a way I like I want to legislate now that the internet is a public place and that therefore Marsh v Alabama applies there (What is the internet? Courts have wildly varied opinions). I want legislation changing the definition of coercion so government can’t even make it’s opinion known to corporations behind closed doors public press conference or nothing. That isn’t what the law is today, and the constitution does not say that is the law today. Furthermore Marsh v Alabama while it is for the most part speech positive does restrict corporate speech in favor of individual speech. In other words it is a tradeoff. For the right to be out of the business of discussing real freedom of expression in this country means we can’t discuss where the tradeoff is between a corporations right to do what it will with it’s own things and your right to speak.
Do you in fact disagree and want to leave this supreme court decision as the final say on your internet freedom and not write a new law that stops government from telling corporations what it wants out? Or not want a new law that extends Marsh v Alabama to the internet? We could either decide
Second the Supreme Court has already ruled the second amendment is not absolute, the laws I mentioned such as illegal to by a machine gun manufactured today, required to go through a hellish registration process with the federal government, and 13 states outright banning them even if it is an old enough weapon and you have the federal go ahead has been ruled on, The first amendment has never been absolute either the fact that the Miller Test is a thing should be more than enough to show you that. The law isn’t changing without legislators, and government practice which will only change by the will and use of power by presidents and governors. This is very basic civics.
The cultural institution we have are called legislatures, governors offices, and god willing in January the presidency. Want to change the culture USE THEM. I promise you if a Republican Congressman saw this thread and thought it reflected Republicans guess what? HE WOULD BE DECIDING THE REPUBLICANS DON’T WANT FREE SPEECH PROTECTING LEGISLATION, OR LEGISLATION BANNING GOVERNMENT COMMUNICATION WITH INFORMATION COMPANIES ABOUT WHAT THE GOVERNMENT CONSIDERS HARMFUL.
I used all caps for emphasis not yelling but face it.
Also I think you would agree the same people who found it outrageous I reminded them if we want to change things we need to use our legislatures and go willing in November presidential power who are “NOOOOOOOOO SUPREME COURT ONLY!!!!!!!!!!!!!!” would if Trump ends up president with congress and the senate either declare Trump is a traitor or declare that a prominent Republican is a traitor if that is what they ended up doing.
Our cultural institutions are run exclusively by the left, and American Legal Practice has not caught up to the internet yet. It is time to use legislators to advance our causes like freedom of speech, Placing all faith in the Supreme Court is wrong.
Ultimately your strategy could be you wish the right judge in the right place makes a big difference, or you could decide on placing your bets on legislative and executive solutions.
I would do legislation and Trump actions.
The idiots who wish to burry their heads instead, well not using powers we had did not work in 2017-2019 did it? Why would it work a second time?
Freedom of speech in 1900 did include freedom to burn the flag; we just don’t have a court decision explicitly saying so, because no case was brought. But we have the courts in the 1930s saying that it included the right to refuse to salute the flag.
As for the indecency case, people were a lot more easily shocked in 1800, plus women’s rights weren’t taken very seriously.
If you had burned the flag in 1900 you would have been arrested and convicted. The reason we had the court decision near the end of the 20th century is because it was still being enforced and prior to that point in time society including the courts did not feel the burning of the American Flag was covered.
People in 1800 understood that clothing could be speech, don’t believe me? Ask why the French Revolution had dramatically different civilian dress depending on which part of the revolution you supported, or why style was so important in every court. The founding generation was regulating speech, today we still have speech regulation.
The only question is do we give that to the left as a monopoly or try to have our say in it.
There has never been a free speech absolutist generation of the United States.
“There has never been a free speech absolutist generation of the United States.”
Given that this is true, does not a general movement towards more permissiveness in speech better reflect the letter and spirit of the First Amendment? The problem with hypothesizing about the correctness of a “no short skirts” ruling in the early 19 Century is that if you accept the ruling as correct you must also believe short skirts can be banned today, and that the current belief that the amendment protects them must therefore be mistaken. Do you believe that? If you don’t, you must acknowledge that the courts would have been wrong (even back then) to have come to this conclusion. Because the meaning and purpose of the First Amendment hasn’t changed since its ratification.
Some of it is supreme court rulings, some of it is legislation, some of it is cultural evolution that enabled more speech in context.
The one we could actually control is legislation, and executive actions which is what I have been advocating for this entire thread, and I hope a belief the supreme court can or will save us while we don’t use legislative power dies with this decision.
Laws usually catch up to technology by legislation.
They catch up b/c they can’t foresee every future innovation. Any suggestion that the Constitution is only applicable to the tech base of the founding is disingenuous. Show me where the Constitution specifically allows a Carrier Battle Group. It doesn’t but it does authorize a Navy.
That’s why we ought to stop silly arguments about ‘well X tech didn’t exist at the founding so it isn’t protected’ or allowed. Instead the proper view of the Constitution is as a limitation on the power of the Federal Gov’t which with the 9th and 10th amendments reserves non delegated powers to the individual States and individual Citizens. Folks that repeat the BS about the 9/10 amendments as ‘dead letter’ have lost their way. No portion of the Constitution is dead letter without an amendment making it so in unambiguous language. The sorts of folks making such arguments don’t properly view the Constitution IMO.
Musk should sue as owner of Twitter. He’d have standing. Slam dunk.
Disclaimer: I didn’t read the decision.
Would he? Or would he be asked “did the government give your organization a choice in the matter, did it offer incentives etc…”
So far the evidence is the censorship decisions came from the top of the corporations and would have happened whatever the governments did.
We have whistle blowers from google showing that googles political bias predates the Biden campaign by a long shot.
Not now, but he will have standing when they do it again – and they will. But he won’t have standing if they go through a foreign government like the EU instead of directly.
The Federal Bureau of Investigation pressures Facebook to take down alleged Russian “disinformation” at the behest of Ukrainian intelligence, according to a senior Ukrainian official who corresponds regularly with the FBI. The same official said that Ukrainian authorities define “disinformation” broadly, flagging many social media accounts and posts that he suggested may simply contradict the Ukrainian government’s narrative.
https://www.leefang.com/p/how-the-fbi-helps-ukrainian-intelligence?
Facebook would have standing in this case, if they resist. But if the FBI pays Facebook, then they are just a government contractor. And that would put 1A in conflict with the power to wage war. Censorship has been done officially in previous wars, like WW 1.
Did the pressure come with a single reward for doing so or punishment for not doing so?
“Hugely disappointing decision. Especially, coming on the heels of the decision a few weeks ago, holding that unrealized, paper and ephemeral capital gains constitute taxable income.”
I didn’t know they did that, dear God, idiots
Yeah, it’s awful. Sets the stage for an inevitable wealth tax, although, the majority claimed in dicta (non’holding remarks), that it wasn’t blessing that result. Hut, we know the vile Dhimmi-crats won’t pa6 attention.
Amy is our Sandra Day O’Connor
Kavanaugh, we’ll just are no words
I know the turtle had a lot to do with these picks
If President Trump isn’t jailed or killed, he will win a 3rd time, he will be adding justices, indoor think we will lose our best Judge Thomas.
Sad.
Wish the one we’d lose is Roberts. Put Thomas in as head, at least for a few years and then he can go on his Raving for life well deserved
Mom afraid the lefty’s will hold on forever, like the little ruth
Phone and autocorrect/ dang
It wasn’t the turtle who had a lot to do with these picks. It was all Trump. 100% Trump.
On the other hand, basic deficiencies such as failure (or evasion) to specify the dates of particular offenses against you seem to be bush-league errors that shouldn’t be committed by lawyers who are in charge of entire freakin’ US states.
Is that what the decision says? That they omitted specifics?
It says that they didn’t provide dates for some social media postings. But the Court, in the affirmative opinion, acknowledges that harm was clearly done to a person through this policy of government coercion – as I pasted below. The Court just claims that since the beatings have stopped no one can reasonably assume that there will be future beatings if the government isn’t sanctioned for the un-Constitutional past beatings that they carried out with impunity and glee.
No, the court did not acknowledge that harm was done to a person. It merely acknowledged that one of the plaintiffs had a better case than the others, and had come closer than the others to proving that harm had been done to her.
The court admitted the claims may be true (by acknowledging that harm may have been done, which wouldn’t be possible if the claims are already conclusively untrue). But because only an injunction was being sought, rather than a settlement, what harm would have been caused to order the government to stop doing something it’s not authorized to do? Because if the government was doing it, the injunction would stop it from doing it again, while if the government didn’t do it, there’s no harm in telling it not to do that which is already prohibited by the First Amendment!
LOL.
This is the award winner for the funniest judicial argument of 2024.
But, wait! AMy Phoney Barrett isn’t finished!!
So … the government can un-Constitutionally instigate some process via criminal coercion and near-treasonous abuse of authority … but if that process remains active without EXPLICIT continued government coercion (*wink, wink*) then it’s all good!!
IT’S A TAX!!!! The companies are paying it “voluntarily” so we’re good to go! John Roberts rides again!
What sick jokes these people are.
All of us are being harmed by government censorship, just some more than others.
It will happen again during the next pandemic – which will be soon. File suit more quickly next time, now that you know what to look for.
You can’t file quickly enough. The Court will ignore it until it’s already too late … again.
The Court did not distinguish itself DURING the pandemic when they trashed the First Amendment by siding with the California Tyrant and his un-Constitutional dictats to “the people” concerning church services – it was perfectly fine to go to crowded Walmart or pot dispensary but church services … no can do!
A superior showing is not the same as actually proving her case. It just means she came closer than the other plaintiffs. “Though she makes the best showing of all the plaintiffs, most of the lines she draws are tenuous.”
This decision does not bode well for the immunity decision. We shall see soon.
My thoughts exactly
I am with you on this; this decision doesn’t bode well by the sound of it.
I think it is irrelevant to the immunity decision.
SCOTUS needs a clearer better case on censorship.
Supreme Court green lights Trump Administration’s ability to force social media to only carry the approved MAGA message.
No, it doesn’t work the other way around because Leftists will always have standing.
It’s like mens rea — it exists when the Left needs it to exist, and it doesn’t when they don’t.
You are right.
The next Trump Administration will probably be more ham-handed about it and fail to cover their tracks like the Leftists do. The Deep State knows how to do things deniably and on the down-low, and it helps to have lots of deep institutional support. Trumpers don’t have those advantages, so Trump political appointees will directly threaten platforms in writing, or orally (and be recorded doing it), or have them arrested and offer plea deal where they agree to censorship, or something like that.
No, Trump’s next term will be like his next last term where his modest, lawful orders are completely ignored by the Deep Sewer that is trying to frame him. But that will be all future GOP admins, if there ever are anymore.
Standing means don’t run in a mirror maze.
Conservative blacklister GDI at center of House ‘censorship’ hearing
State Department’s Global Engagement Center, first reported by the Washington Examiner, awarding $100,000 to GDI,
https://www.washingtonexaminer.com/news/house/3059964/conservative-blacklister-gdi-house-censorship-hearing/
This case proves that SCOTUS fears the Left more than the Right. The Right says “Drat, that ACB sure is a disappointment and it ends there.” The Left burns cities and threatens justices. Given the impact of their last big decision (abortion) on elections, SCOTUS decided to punt.
Because anything more lands them in solitary confinement indefinitely.
There is no doubt the Court’s passing on the merits of plaintiffs’ claims, the federal censorship dial will be turned up to DEFCON 1. Just in time for the presidential election, too.
How much do you want to bet the Biden Administration and the liberals who run all the tech platforms except Twitter will take the Court’s decision as carte blanche to censor any information the Biden Administration doesn’t like and might tend to lessen Joe Biden’s chances of re-election?
Of course they will, and you’ll never have standing for silencing you because there’s no guarantee they’ll do it again. You need a working crystal ball to sue. Don’t have one? T.S.
No standing? No harm done? I should think that every citizen would have standing to complain that government has overstepped its authority. Injury is done thereby to our rights to a republic and the rule of law. The damage wasn’t done by social media platforms bowing to government pressure, it was done by the government by merely applying the pressure. Every social media platform could have rejected the pressure and every citizen would still have been harmed by the government’s act of applying it.
Exactly. Every time the govt seeks to expand its scope outside the explicitly enumerated powers delegated to it by the People and/or current case precedent re thief powers the govt should not be able to implement those actions until the litigation is complete. Ist as I am not required to allow an assailant to physically attack me prior to defending myself so long as I can show a reasonable fear, the same should hold for govt actions and standing.
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