Biden administration’s heresy-silencing campaign can continue unimpeded, for now.

Murthy v. Missouri.

On Wednesday, June 26, 2024, the U.S. Supreme Court issued its decision in Murthy v. Missouri. The next day, the following headline appeared in a news story about it in the local paper: “Court backs social media policy: Justices said it’s OK for the Biden administration to lean on social media companies regardless of content.” No, the Supreme Court did not back the administration’s social media policy. They refused to get involved. As the Court also did in the recent abortion pill case that I blogged about, here, the Court again decided that the plaintiffs lacked “standing” to bring their claim. The Court found that it lacks jurisdiction to adjudicate the plaintiffs' claims because the plaintiffs are the wrong people to complain about it. It has to do with the structure of the U.S. government and the role of the Supreme Court within that structure.

The plaintiffs in Murthy were people and entities who complained about the censoring of social media posts on topics related to COVID-19 and the 2020 presidential election. They pointed to pressure brought to bear by the Biden White House, Surgeon General Vivek Murthy, the CDC, the FBI, the Cybersecurity and Infrastructure Security Agency (CISA), and other U.S. Government agencies, on social media platforms to censor speech along political lines. The gist of their complaint was that these government agents did indirectly, through social media companies, what clearly violates the First Amendment if done directly – they censored the speech of private citizens and entities because they disfavored the content of that speech.

The relief that the plaintiffs sought in the U.S. District Court was for the defendants to be enjoined from continuing their censorship campaign. The District Court found that the plaintiffs had standing to complain. It issued a broad injunction ordering the defendants to cease their campaign of pressuring the social media platforms. The defendants appealed to the Fifth Circuit Court of Appeals, which narrowed the scope of the injunction, leaving it in place as narrowed. The defendants pressed their appeal to the U.S. Supreme Court, arguing that the plaintiffs lacked standing to complain. The defendants won on the standing issue in the Supreme Court.

As Justice Barrett put it in her opinion for the six-Justice majority:

We begin—and end—with standing. At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute.

That’s it. The Supreme Court did not back, or approve, or endorse the Government’s censorship-pressure campaign any more than they condemned it. It might come as a surprise to some, but there are times when agents of the U.S. Government can act in a blatantly unconstitutional manner, and the Supreme Court has no jurisdiction to block or even to address it. Because the Supreme Court’s powers are limited by Article III of the U.S. Constitution to the adjudication of “cases” and “controversies,” and because that means that the Court has no power to involve itself in matters in which a complaining party has no “standing” to complain, the Supreme Court has no power to speak to the government’s  unconstitutional acts if only the wrong people complain about them.

Where can anyone who lacks standing to bring a lawsuit go, to have a rogue executive branch brought to heel when the Supreme Court is not an option? The person or entity could to go to the other political branch – the legislative branch – to seek legislation that turns the unconstitutional conduct into a criminal offense, defined by statute. If the legislative branch happens to be controlled by the same team that controls the executive branch, and if the executive branch’s unconstitutional acts further that team’s interests overall, the legislative branch might not be quick to make those acts a crime. But if they did make those acts criminal, not merely unconstitutional, officials acting in violation of the statute could be prosecuted by the Department of Justice -- that is, unless the Department of Justice, which is also part of the executive branch, decided to exercise its “prosecutorial discretion” not to enforce the law or not to pursue the particular offenders.

The only other option is to wait for the next election cycle, vote-out the head of the executive branch, and hope that the new president manages to drain the executive branch swamp. But there are definitely times when the executive branch can get away with unconstitutional acts for prolonged periods, and there is nothing that the Supreme Court can do about it unless the right person or entity – one directly enough affected by the government’s actions to have standing – brings a complaint.

There was a dissent in Murthy. Justices Alito, Kavanaugh and Thomas believed that at least one of the plaintiffs did have standing. In their view, the Court has found standing before in cases where it was no more apparent than in Murthy. Because all that it would take for the lawsuit to go forward and be decided on the merits is for one of the plaintiffs to have standing, the dissenters would have let the case proceed.

National Rifle Association v. Vullo.

In May, the Supreme Court issued its decision in National Rifle Association v. Vullo. Vullo is another case in which the Court dealt with government pressure on third parties to act in ways that allegedly infringed a plaintiff’s first amendment rights. Although the NRA’s standing was not contested in Vullo, the case helps to illustrate why the Murthy Court decided that the claimed harm from the defendants’ actions there was too indirect to establish standing.

Maria Vullo was the Superintendent of the New York Department of Financial Services (DFS). The DFS oversees insurance and financial services companies that do business in New York. They conduct their own investigations and civil enforcement actions, and they make referrals to the New York Attorney General for prosecution. Vullo didn’t like the National Rifle Association (NRA), at all.

The NRA offered various types of insurance to its members. When a member purchased a policy, the NRA received a percentage of the premiums. The arrangement is known as affinity-insurance and it’s a little complex. The NRA contracted with Lockton Companies, LLC. Lockton administered the policies that its affiliates issued to NRA members. Lockton in turn was backed by underwriters, Chubb Insurance and Lloyd’s of London.

At some point, it was brought to Vullo’s attention that one of Lockton’s affiliates, Carry Guard, was providing insurance policies to NRA members that covered personal injury and criminal defense costs for intentional, reckless, and criminally negligent acts against others committed with a firearm. This type of coverage violates New York law. Vullo began an investigation which broadened to an investigation of other NRA affinity-insurance programs that also failed to meet the requirements of New York insurance law.

As Vullo's investigations continued, a mass school shooting took place in Parkland, Florida, in which 17 people were shot to death. Eleven days after the Parkland shooting, on February 25, 2018, Lockton’s chairman called the NRA to inform them that Lockton was going to sever all ties with the NRA to avoid losing its license to do business in New York. On February 25, 2018, Lockton made the announcement public. Immediately after that, the NRA’s corporate insurer severed all its ties with the NRA and dropped corporate coverage. The NRA claimed that Lockton and the corporate insurer took these actions because they feared reprisal from Vullo unless they severed ties with the NRA.

On February 27, 2018, Vullo met with senior executives of Lloyds of London and told them her investigation had turned up a host of technical infractions in the overall affinity-insurance marketplace. But, she also told them that, as long as Lloyd’s stopped doing business with gun groups, she was not particularly interested in pursuing past violations that did not involve business with the NRA. Vullo struck a deal with Lloyds: Lloyds would tell its syndicates to stop underwriting gun-related policies and reduce its business with the NRA, and in exchange the DFS would focus its enforcement actions on syndicates that did business with the NRA and away from syndicates writing similar policies for entities other than the NRA.

On May 9, 2018, Lloyd’s instructed its insurance syndicates to end all business with the NRA and not to issue them any new policies. That same day, Lloyd’s publicly stated that they were finished doing business with the NRA.

The NRA sued Vullo. The issue before the Supreme Court was whether the NRA stated a claim that should survive Vullo’s motion to dismiss. As the Supreme Court described things:

The only claims before the Court today are those against Vullo—namely, claims that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress “the NRA's pro-Second Amendment viewpoint” and “core political speech."

As courts are required to do in deciding such matters, the Supreme Court took the NRA’s claims as true for purposes of the motion to dismiss. In that light, the Court found that the lawsuit should be allowed to move forward.

Here, the Supreme Court dealt with specific threats, by DFS Superintendent Vullo, to take actions adverse to Lloyd’s of London unless Lloyd’s severed ties with the NRA, alongside promises of benefit to Lloyd’s if they did sever ties. Vullo targeted her coercion of Lloyd’s to harm the NRA in particular because Vullo did not like the NRA and its advocacy of gun ownership. The Vullo case demonstrates that threats by government agents to harm a third party unless that third party interferes with a targeted entity’s speech, can in fact give rise to a first amendment claim against the government.

On the other hand, in Murthy the problem for the plaintiffs was that the Supreme Court found a lack of proof that the defendants’ actions caused the social media platforms to censor them. Also, the plaintiffs sought injunctive relief against future government actions, but the defendants had already tapered-off their most heavy-handed actions by the time the individual plaintiffs joined the lawsuit in August of 2022.

That made it questionable whether injunctive relief against government agents could possibly even cause the social media platforms to refrain from future censorship of the plaintiffs. Maybe the platforms did the censoring of their own volition, independent of the government’s pressure campaign, and maybe they would continue it even if the government agencies were enjoined from pressuring them in the future. The Murthy majority didn’t see a strong enough connection between the government’s coercion campaign and the social media platforms’ censoring of the plaintiffs’ viewpoints.

Vullo involved overt thuggery while the thuggery in Murthy was slightly more subtle.

Vullo’s actions were very overtly the stuff of thuggery. Vullo didn’t like the NRA, and she thought she could damage them by threatening harm to insurers unless they did her bidding. So, she essentially told the insurers: “Nice little insurance business you’ve got there – it’d be a shame if something should happen to it.” The NRA was in Vullo’s direct line of fire.

In contrast, what did the Government agents do in Murthy? I previously blogged about the factual findings in the District Court. At the Supreme Court, the Murthy dissenters fill us in on some of what they describe as the defendants’ “blatantly unconstitutional” actions. For instance, according to the dissent:

• “In March of 2021, Rob Flaherty, the White House Director of Digital Strategy, promptly emailed Facebook… that the White House was ‘gravely concerned that [Facebook] is one of the top drivers of vaccine hesitancy’…demand[ing] to know how Facebook was trying to solve the problem. In his words, ‘we want to know that you’re trying, we want to know how we can help, and we want to know that you’re not playing a shell game with us when we ask you what is going on.’”

• Following this, Andy Slavitt, White House Senior Adviser for the COVID-19 Response told Facebook “the White House did not believe that Facebook was ‘trying to solve the problem,’ so he informed Facebook that ‘[i]nternally we have been considering our options on what to do about it.’”

• “In April, Flaherty again demanded information on the ‘actions and changes’ Facebook was taking ‘to ensure you’re not making our country’s vaccine hesitancy problem worse.’ To emphasize his urgency, Flaherty likened COVID–19 misinformation to misinformation that led to the January 6 attack on the Capitol. Facebook, he charged, had helped to ‘increase skepticism’ of the 2020 election, and he claimed that ‘an insurrection…was plotted, in large part, on your platform.’ He added: ‘I want some assurances, based in data, that you are not doing the same thing again here.’”

• Later still, White House Press Secretary Jen Psaki was asked at a press conference about Facebook’s decision to keep former President Donald Trump off the platform. “Psaki deflected that question but took the opportunity to call on platforms like Facebook to ‘stop amplifying untrustworthy content…, especially related to COVID–19, vaccinations, and elections.’ In the same breath, Psaki reminded the platforms that President Biden ‘supports…a robust anti-trust program.’”

• “Flaherty chastised Facebook for failing to prevent some vaccine-hesitant content from showing up through the platform’s search function. ‘[R]emoving bad information from search’ is one of the easy, low-bar things you guys do to make people like me think you’re taking action,’ he said.  ‘If you’re not getting that right, it raises even more questions about the higher bar stuff.’”

• “Perhaps the most intense period of White House pressure began a short time later. On July 15, Surgeon General Vivek Murthy released an advisory titled ‘Confronting Health Misinformation.’ Dr. Murthy suggested, among other things, algorithmic changes to demote misinformation and additional consequences for misinformation ‘super-spreaders.’ Dr. Murthy also joined Psaki at a press conference, where he asked the platforms to take ‘much, much more…aggressive action’ to combat COVID–19 misinformation ‘because it’s costing people their lives.’”

• “At the same press conference, Psaki singled out Facebook as a primary driver of misinformation and asked the platform to make several changes. Facebook responded by telling the press that it had partnered with the White House to counter misinformation and that it had ‘removed accounts that repeatedly break the rules’ and ‘more than 18 million pieces of COVID misinformation.’ But at another press briefing the next day, Psaki said these efforts were ‘[c]learly not’ sufficient and expressed confidence that Facebook would ‘make decisions about additional steps they can take.’ That same day, President Biden told reporters that social media platforms were ‘killing people’ by allowing COVID-related misinformation to circulate.”

• “[F]ar from disclaiming potential regulatory action, the White House confirmed that it had not ‘taken any options off the table.’ In fact, the day after the President’s supposed clarification, the White House Communications Director commended the President for ‘speak[ing] very aggressively’ and affirmed that platforms ‘certainly... should be held accountable’ for publishing misinformation. Indeed, she said that the White House was ‘reviewing’ whether §230 should be amended to open the platforms to suit.”

In other words, focusing on Facebook alone, the government-agent-defendants accused Facebook of failing to cooperate in suppressing “misinformation” and “vaccine hesitancy.” The defendants suggested that Facebook was “killing people,” that it needed to be held “accountable,” and told Facebook that the government was considering very serious action against them, including regulatory action that could significantly harm their business, unless they did the government’s bidding to the government’s liking, censoring-out heretical speech on COVID-19. The plaintiffs’ viewpoints were exactly the heretical viewpoints that the government insisted must be suppressed, and their speech was in fact suppressed.

But, again, maybe it wasn’t the thuggery of the government goons that caused the plaintiffs’ speech to be taken down -- See? -- just because the government goons told the social media companies: “Nice little social media company you’ve got there. It’d be a real shame if something should happen to it.”

There are simply some unconstitutional governmental actions that the Supreme Court doesn’t have the power to stop. The current administration has demonstrated its willingness to do what it can get away with doing in pursuit of its goals. We can expect much more speech-suppressing thuggery now that they are certain of what they can get away with.

It’s also worth remembering that when this administration targets speech for take-down as misinformation, disinformation, or mal-information, their targeting is not limited to speech that is untrue. The line that distinguishes speech that they don't target from speech they do target is drawn at whether the speech advances their agenda, or hinders it.

For instance, in July of 2021, when the White House was accusing social media platforms of “killing people,” President Biden was simultaneously promoting the narrative that the COVID-19 vaccines provide absolute protection from contracting or spreading COVID-19. At a July 21, 2021, “town hall” on CNN, Biden told the public, “You’re not going to get COVID if you have these vaccinations,” and “If you’re vaccinated, you’re not going to get hospitalized, you’re not going to be in the IC unit, and you’re not going to die.” These assertions were baseless and flat-out false, but there was no effort by the defendants in Murthy to remove such assertions from social media as "mis," "dis," or "mal"-information. In fact, the narrative was spread widely on social media platforms. Why? Because it advanced the administration’s agenda.

When fake news stories circulated, about rural hospitals having to turn away gunshot victims because the hospitals were stuffed past capacity, with hicks dying from taking too much horse dewormer after following Joe Rogan’s advice on Ivermectin, the administration applied no pressure to have them taken down. Why? Because they served the administration’s agenda.  And so on…

Now that the administration knows what coercive speech-suppression thuggery it can get away with, and what kind it can’t, you should continue to be prepared for cancellation if you have any kind of platform and dare to speak against the administration’s line. By now, you should know their shtick. They’ll commit their speech-suppressing thuggery under the banner of Team Truth and Justice, Team Rule of Law™, stamping out “mis,” “dis,” and “mal”-information to save humanity from existential threats to Our Democracy™. And they think you’re dumb enough to swallow it.