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The Supreme Court hands an embarrassing defeat to America’s Trumpiest court

WASHINGTON, DC – FEBRUARY 07: U.S. President Joe Biden greets Supreme Court Justices Amy Coney Barrett and Ketanji Brown Jackson before delivering the State of the Union address to a joint session of Congress on February 7, 2023 in the House Chamber of the U.S. Capitol in Washington, DC. The speech marks Biden's first address to the new Republican-controlled House. (Photo by Jacquelyn Martin-Pool/Getty Images)

The Supreme Court handed down a stern rebuke to some of the most right-wing judges in the country on Wednesday, holding that no, judges do not get to micromanage how the Biden administration speaks to social media companies.

The vote in Murthy v. Missouri was 6-3, with Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett joining the Court’s three Democratic appointees in the majority. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.

As Barrett’s majority opinion lays out, this lawsuit never should have been filed in the first place, and no federal court should have entertained it. Her opinion holds that the Murthy plaintiffs, who raised vague allegations that the government tried to censor them, could not even show that the government did anything to harm them in the first place.

Murthy involves a wide range of communications among the White House, various federal agencies, and major social media platforms like Facebook and X (the website formerly known as Twitter). Some of these communications urged platforms to remove content, such as speech seeking to recruit terrorists, to spread election disinformation, or to promote false and potentially harmful medical advice — including false claims about Covid-19 and vaccines.

The plaintiffs in Murthy are two red states plus an array of individuals who had content removed or suppressed by at least one of the social media platforms. They claimed that platforms censored them because of pressure from the government, and that this pressure violates the First Amendment.

That is a highly dubious claim. While the First Amendment forbids the government from coercing media outlets into removing content, nothing prevents the government from asking a platform to do so. Indeed, at oral arguments in Murthy, both Justices Elena Kagan and Kavanaugh recounted times when, during their service as White House officials, they pressured journalists to remove or correct editorials or other content that contained factual errors.

Nevertheless, the far-right US Court of Appeals for the Fifth Circuit did not simply embrace this claim, it issued a vague and sweeping injunction forbidding the Biden administration from having “consistent and consequential” communications with social media companies — whatever that means. As a practical matter, this difficult-to-parse injunction made it virtually impossible for the administration to have any communications whatsoever with the platforms.

But the Supreme Court held that the Fifth Circuit was wrong to even consider these plaintiffs’ dubious First Amendment arguments, ruling that federal courts lack jurisdiction over this case.

Why the Supreme Court tossed this case out

In order to file a federal lawsuit of any kind, a plaintiff must show that they’ve been injured in some way by the defendant — a requirement known as “standing.”

As Barrett lays out in her opinion, this standing requirement has several components. Among other things, a plaintiff must show that the defendant’s actions actually caused their injury, and that the injury is “redressable” by a court order — meaning that the court could actually do something to fix the damage allegedly caused to the plaintiff.

Additionally, when a plaintiff seeks an injunction — a court order requiring the defendant to change their behavior in the future — it is not enough to show that the defendant harmed the plaintiff in the past. Rather, as Barrett writes, the plaintiff must show that it is “likely” the defendant will cause them the same harm in the future.

Notably, these plaintiffs sued the federal government, and not the platforms themselves, for the platforms’ decision to remove or demote some of the plaintiffs’ content. That decision, to target a defendant with only an attenuated connection to the alleged censorship, made the Murthy plaintiffs’ case even weaker.

Indeed, some of their claims that they were injured by the government were embarrassingly thin. One plaintiff, for example, claimed that Twitter suspended his brother’s account in response to pressure from the FBI. But even setting aside the lack of evidence that the FBI played a role in Twitter’s decision, a plaintiff does not have standing to sue if their brother was harmed — only the brother may file such a lawsuit.

The Court did find some vague links between Facebook’s decision to moderate content by one of the plaintiffs, an anti-mask and anti-vaccine mandate activist named Jill Hines, and the government’s actions. Facebook deleted one of Hines’s posts three months after a White House official suggested that the platform should “end group recommendations for groups with a history of COVID–19 or vaccine misinformation.” And Facebook warned Hines against reposting content from a particularly notorious anti-vaccine advocate, third-party 2024 presidential candidate Robert F. Kennedy Jr., two years after the White House included Kennedy on a list of prolific spreaders of Covid misinformation.

But, as Barrett writes, these links are weak: “Facebook was targeting [Hines’s] pages before almost all of its communications with the White House and the CDC, which weakens the inference that her subsequent restrictions are likely traceable to ‘government-coerced enforcement’ of Facebook’s policies.” And even if the links were stronger, Hines can’t show that she will face future injury because of the government’s actions.

Among other things, Barrett notes that the Biden administration has largely halted its efforts to persuade social media platforms to remove Covid misinformation now that the acute phase of the pandemic has ended. So even if Hines could somehow show that some of her content was removed in the past due to government pressure, she has no reason to believe that it will be removed in the future due to similar pressure.

The Fifth Circuit is a rogue court

It’s notable that three Republican justices, including two Trump appointees, joined the Murthy majority. This is less a sign of those justices’ moderation than it is a response to an increasingly partisan Fifth Circuit.

The Fifth Circuit, which is dominated by far-right judges, routinely hands down decisions that no reasonable judge could support — and the Supreme Court spends an increasing amount of time correcting these decisions. Earlier this term, for example, the Supreme Court reversed the Fifth Circuit’s declaration that an entire federal agency is unconstitutional. It also reversed the Fifth Circuit’s holding that domestic abusers have a right to own guns (although, in fairness, the Fifth Circuit’s decision in that case was more defensible under the justices’ own incompetently drafted opinion in the 2022 case New York State Rifle & Pistol Association v. Bruen).

The Fifth Circuit’s order in Murthy fits this pattern. That court took a bunch of vague allegations, involving decisions by private companies that had only a tenuous connection to anything done by a government official, and used those vague allegations to try to shut down the Biden administration’s ability to communicate with those companies.

Barrett even faults the Fifth Circuit, and the right-wing trial judge who first heard this case, for misrepresenting many key facts. In her words, “the Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous.”

For the moment, at least, the Supreme Court appears to be holding the line against this uniquely partisan court -— but it is far from clear that this line will hold if Trump wins the 2024 election. Murthy, after all, was a 6-3 decision. So, if Trump gets to appoint two more justices, the Fifth Circuit’s values could soon be imposed on the entire nation.

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