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The Supreme Court Just Opened the Door to a New Orwellian Censorship Regime

DCNF(DCNF)—The Supreme Court’s decision in a recent case challenging the Biden administration’s censorship efforts unleashed renewed threats to Americans’ ability to speak and listen freely online while effectively putting a legal remedy out of reach ahead of the 2024 election, legal experts told the Daily Caller News Foundation.

Last year on Independence Day, U.S. District Court Judge Terry A. Doughty issued the initial injunction blocking a range of government agencies from communicating with social media companies to suppress speech, calling the government’s actions “Orwellian.” But one year later, with the Fifth Circuit’s narrower injunction now lifted by the Supreme Court in Murthy v. Missouri, officials have free rein to again employ the same tactics.

“It’s basically a roadmap for government actors, not just the federal government, but also state and local government actors, to reach out to social media companies and pressure them into censoring this disfavored speech,” Center for American Liberty associate counsel Eric Sell told the DCNF.

The Supreme Court held that plaintiffs in the case, who included two states and five individuals, did not have standing to seek an injunction against the government.

In her majority opinion, Justice Amy Coney Barrett said the plaintiffs failed “to link their past social-media restrictions to the defendants’ communications with the platforms.” She also noted that platforms had “independent incentives to moderate content,” making it difficult for the plaintiffs to establish they were harmed directly as a result of the government’s requests.

Justice Samuel Alito worried in his dissent that the Supreme Court’s ruling, though it did not reach the merits of the issue, would send the message that coercive government campaigns against certain speech can run unchecked if “carried out with enough sophistication.”

Alito wrote that 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.”

John Vecchione, senior litigation counsel at the New Civil Liberties Alliance, which represents some plaintiffs in Murthy v. Missouri, told the DCNF that the majority’s decision gives government officials “wide running room” to put pressure on companies behind the scenes.

Agencies such as the FBI and the Cybersecurity and Infrastructure Security Agency (CISA) already resumed communications with social media platforms after multiple justices appeared sympathetic to the government’s position during oral arguments in March, reports indicated at the time.

White House press secretary Karine Jean-Pierre said in a statement following the ruling that the Court’s decision “helps ensure the Biden Administration can continue our important work with technology companies to protect the safety and security of the American people.”

“If courts require very strong evidence of causal links plus an ‘ongoing’ campaign just to get standing, government agencies can use that procedural requirement to escape judicial scrutiny of even very extensive indirect censorship,” George Mason University law professor Ilya Somin wrote last week in Reason. “That problem is likely to become more severe as agencies figure out the relevant standing rules, and try to tailor their threatening communications to firms in ways that exploit them.”

Without an injunction, there’s nothing preventing the government from doing during the 2024 election what it did to encourage platforms to restrict content in 2020. As documents uncovered in the course of litigation revealed, officials demanded companies censor speech not only about COVID-19 but also the election.

During 2020, CISA engaged in “switchboarding” efforts, which allowed state and local election officials to flag “misinformation” posts for the agency, which it would in turn share with social media platforms.

State officials have also undertaken similar actions.

Sell represents a client, conservative political commentator Rogan O’Handley, who sued when his account was allegedly censored and later suspended by Twitter after California’s Office of Election Cybersecurity flagged it over a 2020-election related post. The Supreme Court declined on Monday to take up his case.

As the Murthy v. Missouri case returns to the district court, Vecchione said they will seek more evidence of government coercion through discovery.

“The Supreme Court has demanded a very high standard, and if the government is going to press on that standard, well, they’ve got to drop their shorts and show us everything,” Vecchione said.

Some plaintiffs suggested Congress step in after the ruling.

Health Freedom Louisiana co-director Jill Hines said Congress should “act immediately to defund agencies and third parties actively involved in this broadly pervasive and unconstitutional censorship scheme.” Stanford University School of Medicine professor Dr. Jayanta Bhattacharya likewise said concrete action is needed to “restore free speech rights as a central plank of the American civic religion.”

Foundation for Individual Rights and Expression Chief Counsel Robert Corn-Revere made a similar call for Congress to “take action.”

“Despite reams of evidence documenting government pressure, the court held today these plaintiffs lacked standing to sue,” he said. “FIRE is concerned about what this means for future First Amendment plaintiffs. But the majority opinion notes courts have the power to stop government attempts to pressure social media platforms when proven. That’s important.”

NCLA Chief Executive Officer Philip Hamburger wrote in a column Tuesday that the decision made the First Amendment “for all practical purposes, unenforceable against large scale government censorship.”

“The decision is a strong contender to be the worst speech decision in the court’s history,” he said.

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