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Supreme Court Overturns Finding of Illegal Censorship on COVID-19 and More; Dissenters Stand Up for Free Speech

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Relying on “standing” as a reason not to defend free speech is a real cop-out. As a matter of great public interest, I would have thought that EVERYONE had standing

Once upon a time, it was liberals such as those at the ACLU who stood up for free speech under the First Amendment. In a June 26 ruling by the Supreme Court in Murthy, et al. v. Missouri et al., the script has flipped, with conservative justices Alito, Thomas, and Gorsuch defending free speech, albeit in the dissent.

The Murthy opinion overturns the federal Court of Appeals decision which had banned government agencies from telling social media firms what they should, or should not, allow to be published. The majority opinion by Justice Barrett ruled that the plaintiffs did not have “standing,” legalese for the requirement to show that they have personally suffered, or will suffer, from the actions of defendants. In addition to the standing issue, this lengthy opinion makes every effort to downplay the effects of, or deny the reality of, undisputed efforts by the US government to limit free speech relating to COVID-19, election integrity, and more.  Aren’t the attorney generals there to represent their state’s residents?

We know from firsthand experience about the censorship ongoing during the Biden administration. From Facebook to YouTube factual news posted by TrialSite was routinely flagged or censored despite 100% factual news accounts.  TrialSite was even censored for “mal-information” involving the Gardasil lawsuit. We simply reported on the litigation against Merck by persons claiming injury due to the HPV vaccine.  YouTube censored declaring because the World Health Organization had not commented on the lawsuit they considered any reporting on the topic “mal-information.”

But back to the case.

Injury traceable to government?

Barrett recounts how during, “the 2020 election season and the COVID–19 pandemic, social-media platforms frequently removed, demoted, or fact checked posts containing allegedly false or misleading information. At the same time, federal officials, concerned about the spread of ‘misinformation’ on social media, communicated extensively with the platforms about their content-moderation efforts.” The plaintiffs include two states as well as five users of social media. They sued dozens of Executive Branch agencies and officials for violation of the First Amendment. In key language, Barrett posits that as to the prior ruling, “The Fifth Circuit was wrong to do so. To establish standing, the plaintiffs must 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. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.”

Lab-origin of COVID-19 suppressed

Topics of “misinformation” at issue included “the efficacy and safety of mask wearing and the COVID–19 vaccine, along with posts on related topics.” Notably, all the evidence shows that face masking does not stop the spread of respiratory viruses. So here is a case where the truth was censored. Likewise, a lab origin for COVID-19 was deemed a “conspiracy” theory, despite being the likeliest explanation for the pandemic. Also, the Hunter Biden laptop revelations were effectively halted by false claims by our government that the story was “Russian hacking” related. The truth is Hunter, a drug addict, left his computer at a repair shop and never picked it up. This one example of censorship could well have impacted the 2020 presidential election.

Officials “peppered” Facebook with questions

The opinion admits that “officials peppered Facebook (and to a lesser extent, Twitter and YouTube) with detailed questions about their policies, pushed them to suppress certain content, and sometimes recommended policy changes. Some of these communications were more aggressive than others. For example, the director of Digital Strategy, frustrated that Facebook had not removed a particular post, complained: ‘[L]ast time we did this dance, it ended in an insurrection.’” Barrett also concedes that officials, “perhaps as motivation, raised the possibility of reforms aimed at the platforms, including changes to the antitrust laws and 47 U. S. C. §230.” Despite the opinion’s efforts to minimize the government’s actions, it notes that “Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.”

A “right to listen”?

While the plaintiffs alleged standing both on direct censorship on their views and of their “right to listen” to the then censored voices. Barrett offered that “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.” While the Fifth Circuit focused on the general First Amendment violation of agencies telling the broad social media community what to say, Barrett focused on the difficulty of discerning which government actions may have led to which suppressions of speech based on content.   

Dissent stands up for First Amendment

According to the dissent by Justice Alito, who along with two others would have upheld the lower appeals court decision: “In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield. For these reasons, I would hold that [one plaintiff] is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.” Alito closed his dissent with the following: “For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”

We can’t be certain on impact but likely federal meddling in the communications of its citizens will ensue. Especially so if new emergencies are declared.





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