On The Front Lines
Supreme Court Sidesteps Effort to Rein In Government Campaign to Coerce Social Media Companies to Censor First Amendment Activity
WASHINGTON, D.C. — In a 6-3 ruling, the U.S. Supreme Court has sidestepped a challenge to the federal government’s efforts to coerce social media companies into censoring users’ First Amendment expression.
Finding that the plaintiffs lacked standing, the Supreme Court declined to rule on the First Amendment issues in Murthy v. Missouri (formerly known as Missouri v. Biden). However, in his dissent, Justice Alito warned that by avoiding the free speech issue, the Court “permits the [government’s] 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. …It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.” In its amicus brief, The Rutherford Institute argued that the federal government violated free speech rights by coercing and significantly encouraging social media companies to silence any viewpoints at odds with the government on issues ranging from COVID-19 safety measures and vaccines to election fraud.
“Technofascism is the modern-day equivalent of book burning, which does away with controversial ideas and the people who espouse them,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “As the Supreme Court previously recognized, ‘The people lose when the government is the one deciding which ideas should prevail.’ Once you allow government agencies and corporations to determine what viewpoints are ‘legitimate’ and which are not, you’re already moving fast down a slippery slope that ends with the censorship of all viewpoints other than those of the government and its corporate allies.”
For years now, federal officials from the White House, the Surgeon General’s Office, CDC, FBI, and the Cybersecurity and Infrastructure Security Agency have been in regular contact with nearly every major American social media company about the spread of “misinformation” on their platforms, urging them to remove disfavored content and accounts from their sites. In turn, the social media companies gave government officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to government officials.
A First Amendment lawsuit was subsequently filed against the federal government, arguing that although the social media platforms stifled their users’ speech, it was government officials who were pulling the strings through private communications and threats. Plaintiffs in the lawsuit include two epidemiologists who criticized COVID-19 lockdowns; a psychiatrist who opposed lockdowns and vaccine mandates; the owner of Gateway Pundit, a once-deplatformed news site; and the states of Missouri and Louisiana. In siding with the plaintiffs, both the trial court and the Fifth Circuit Court of Appeals agreed that government officials “engaged in a broad pressure campaign” by “relentlessly” asking the platforms to remove disfavored content and threatening to retaliate against inaction with legal reforms and enforcement actions. The U.S. Supreme Court reversed upon finding that the plaintiffs lacked standing to bring the lawsuit. However, a similar case brought by Robert F. Kennedy, Jr. and others is still pending in the same trial court, and Justice Alito previously noted that Kennedy has a much stronger claim to standing.
Affiliate attorney Christopher F. Moriarty assisted with advancing the arguments in the amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
Case History
February 22, 2024 • TRI Challenges Government Efforts to Censor Speech and Pressure Tech Companies to Block, Ban, De-Platform and Restrict Users
