The Supreme Court’s refusal to hear Murthy v Missouri leaves government-driven censorship unchecked. This case sought to hold federal officials accountable for pressuring social media to silence dissent on topics from COVID policies to Hunter Biden’s laptop. With leaked emails showing threats and demands from officials, it’s clear Americans need stronger protections for free speech.
Enter the Free Speech Protection Act, introduced by Senator Rand Paul and Representative Jim Jordan, which would penalize government officials for undermining First Amendment rights. In a new article at Real Clear Markets by Market Institute President Charles Sauer, he explains why Murthy v Missouri raises urgent questions about censorship and the role of government in free expression.
“The “radical right-wing” Supreme Court recently sided with government censors by refusing to hear the case of Murthy v Missouri. This is the case alleging that Federal officials, including Surgeon General Vivek Murthy and the big guy, violated the First Amendment by “encouraging” social media companies to censor Americans expressing dissenting views on Covid and other issues, including Hunter Biden’s laptop from hell. The court upheld that the plaintiff doesn’t have standing to challenge the government’s actions in this case.
In order to establish standing, a plaintiff must show that they were harmed due to the actions of the defendant (traceability), and that the plaintiff could achieve at least some measure of compensation or mitigation by punishing the defendant (redressability). The court ruled that the plaintiff failed to establish traceability and redressability.
The Court found the plaintiffs failed to establish traceability because the social media companies had removed certain posts for violating the companies’ content moderation policies. This meant that forbidding government officials from requesting that certain posts be removed would not protect social media users from having their posts removed or suppressed. This is true but also irrelevant to the plaintiffs’ case, which covers specific instances where posts were removed at the behest of pressure put on the social media companies from government officials.
Leaked emails from government officials to the employees of tech companies show how involved the government was in online censorship. They also show that the officials did not see these messages as requests but as orders. In many of the emails, the government addresses the employees of these private companies as if they were chastising an intern. In at least one of the emails, the government official used profanity. The government officials also “reminded” the social media companies that they were under threat of increased federal regulations, including being hauled into court for allegedly violating antitrust laws and new legislation limiting the ability of the companies to manage their own businesses.
The court found that the plaintiffs did not meet the criteria for redressability on the grounds that the plaintiffs were already seeking court orders that the government cannot force, suggest, or encourage private social media companies to remove certain posts. The court found that these orders were no longer necessary since the government appeared to have stopped pressuring social media companies after the pandemic subsided.
However, having gotten away with it likely means government officials will not hesitate to pressure social media companies to censor Americans next time they declare a public health emergency. It is not just those who challenge public health policies, such as mask and vaccine mandates, who are under threat. Can anyone doubt that government officials would hesitate to pressure Facebook and YouTube to remove content critiquing U.S. support for Ukraine on the grounds that it was “Russian disinformation”? Or posts critical of U.S.-Middle East policies on the grounds that they are antisemitic? Government officials may even try to silence critics of the government’s fiscal and monetary policies. There is also the ongoing effort to silence “climate change deniers.”
The court’s failure to protect the people from the government’s online censors means it is up to Congress to do so. Fortunately, House Judiciary Committee Chair Jim Jordan and Kentucky Senator Rand Paul have introduced the Free Speech Protection Act. This bill prohibits federal employees (including employees of federal contractors) from using their position to undermine legitimate First Amendment activity. Anyone found violating this law would be subject to a fine of $10,000 or more as well as suspension or termination, and a ban on all future federal employment.”
