Murthy v. Surgeon General: Supreme Court Punts on Social Media Censorship – Alito Pens Fiery Dissent

​The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
 
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.”
 
The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds.
 
Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion.
 
The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote:
 
“If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …”
 
We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place.
 
Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by.