Breaking: Supreme Court Rules in Favor of Biden Administration in Censorship Case

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Originally published on www.childrenshealthdefense.org by Brenda Baletti, Ph.D.

The U.S. Supreme Court today ruled the plaintiffs in the Murthy v. Missouri censorship case didn't have standing to sue the Biden administration for pressuring social media companies to censor certain content -- but Robert F. Kennedy Jr. said the similar case he and Children's Health Defense filed against the administration will move forward.

The U.S. Supreme Court today ruled against plaintiffs, including two states and five social media users, who sued top Biden officials and government agencies for pressuring social media companies to censor content.

In the 6-3 decision in Murthy v. Missouri, the justices ruled the plaintiffs didn't have legal standing to bring their case.

The ruling reversed decisions by two lower courts, which held that when the government "coerced" or "significantly encouraged" the platforms to moderate content related to COVID-19, presidential elections and other controversial topics, they transformed the social media companies' decisions into state action, violating plaintiffs' First Amendment rights.

Commenting on today's decision, Children's Health Defense (CHD) CEO Mary Holland said she "is deeply disappointed" in the court's decision to reverse the preliminary injunction "that the Western District of Louisiana granted and the 5th Circuit affirmed."

Holland said, "We consider the government's role in coercing and encouraging censorship by social media platforms the greatest threat to free speech in our time."

CHD and its founder and chairman on leave Robert F. Kennedy Jr. in March 2023 made similar allegations against the Biden administration in a class action lawsuit filed on behalf of all American news consumers.

A federal judge in July 2023 consolidated the two lawsuits, which allowed them to have shared processes for discovery.

Plaintiffs in Kennedy et al. v. Biden et al. also requested and were granted a preliminary injunction by the same judge, Terry Doughty, prohibiting key Biden administration officials and agencies from coercing, significantly encouraging, or taking joint action with social media platforms to suppress or censor online content.

However, Judge Doughty simultaneously issued a stay on the injunction until 10 days after the Supreme Court ruling in Murthy v. Missouri.

Holland said that CHD and Kennedy don't face the same problem of standing as some of the plaintiffs in Murthy v. Missouri and that Kennedy v. Biden is expected to move forward.

She said:

"We note that the Supreme Court did not reach the merits. We will continue with Kennedy v. Biden, a separate lawsuit in the Western District of Louisiana, where we believe there is no issue regarding lack of standing for Robert F. Kennedy, Jr. or Children's Health Defense, who were directly and traceably censored and continue to be heavily censored.

"We expect this case to move forward even if standing remains an issue for the Missouri v. Biden plaintiffs."

If Kennedy v. Biden is heard on its merits -- which the court did not do in Murthy v. Missouri -- the outcome could have wide-reaching implications for the First Amendment and online speech, Holland said.

On X, formerly Twitter, Kennedy said there is "no question" that he and CHD have standing:

TWEET

One of 'the most important First Amendment' cases of the internet age

The New York Times called Murthy v. Missouri one of "the most important First Amendment" cases of the internet age, because of the constitutional questions at stake.

Both cases cited the disclosures of secret communications between social media companies and federal officials -- in the "Twitter Files," other lawsuits and news reports -- revealing threats by President Joe Biden and other top officials against social media companies if they failed to aggressively censor.

Judge Doughty, in July 2023, issued a preliminary injunction in Murthy v. Missouri (formerly Missouri v. Biden), barring several federal agencies and Biden administration officials from engaging in those actions until the lawsuit was decided.

Then the 5th Circuit U.S. Court of Appeals narrowed but upheld what Justice Amy Coney Barrett, writing for the majority, called a "sweeping preliminary injunction," in September 2023.

"The Fifth Circuit," Barrett wrote, "was wrong to do so."

The plaintiffs in Murthy v. Missouri -- the states of Missouri and Arkansas, Drs. Jay BhattacharyaMartin Kulldorff and Aaron Kheriaty, The Gateway Pundit's Jim Hoft and health activist Jill Hines -- argued that the censorship they experienced on social media could be tied to government action and that they are likely to be censored in the future.

Barrett disagreed, writing that social media companies have long-standing content moderation policies and plaintiffs didn't show "specific causation" for discrete instances of content moderation tied to the government, nor did they demonstrate a substantial risk that "in the near future they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek."

The court did concede that the federal government played a role in the content decisions, but maintained the relationship was more complex than the lower court rulings accounted for when they "glossed over complexities in the evidence".

Barrett wrote:

"The platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms' moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence."

Barrett added that the lower court erred in "treating the defendants, plaintiffs, and platforms each as a unified whole," and that instead, each plaintiff must demonstrate their own standing for each claim against each defendant.

Jenin Younes, an attorney for the plaintiffs, tweeted, "While disappointing, the decision is not devastating." She said the underlying case will continue. "This fight is not over!!"

Alito dissents, 'It was blatantly unconstitutional'

Justice Samuel A. Alito Jr. dissented, joined by Justices Clarence Thomas and Neil M. Gorsuch.

In his dissenting opinion, Alito called the case "one of the most important free speech cases to reach this Court in years."

He criticized the court for failing to address the underlying free speech questions at stake in the case and said that if any of the plaintiffs had standing -- which he argued Hines did -- the court was obligated to address the merits of the case.

"The Court, however, shirks that duty and thus 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," Alito wrote.

He added that the extensive record plainly shows the administration coerced social media companies to comply with their wishes and suppress speech. "It was blatantly unconstitutional, and the country may come to regret the Court's failure to say so."

What Alito called the "vast" record of evidence shows that some federal officials communicated with social media platforms about so-called "misinformation" on their websites, instructing the platforms to remove some content and some media accounts.

In response, the platforms created an expedited reporting system, removed certain content, and banned specific users from their websites. The platforms also modified their content policies to capture more posts and continued to remain in contact with these officials.

Relevant to the Kennedy v. Biden case, that record includes specific evidence the Biden officials sought to censor tweets by Kennedy.

For example, the White House specifically targeted Kennedy's Jan. 22, 2021, tweet about the then-recent death of baseball Hall of Famer Hank Aaron, 18 days after he publicly received the Moderna vaccine.

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