The Court Green-Lights Censorship

In 1919, the Supreme Court used the pretext of crisis to overhaul the First Amendment as it jailed critics of the Great War. Over a century later, the Court has again fallen victim to the Beltway’s prevailing zeitgeist in today’s regrettable decision in Murthy v. Missouri. 

The Court’s opinion, written by Justice Amy Coney Barrett, rejects the lower court’s injunction against many government agencies to stop leaning on social media companies to curate content, and does so on grounds that the plaintiffs lack standing. 

The opinion rests on omitted facts, skewed perceptions, and absurd conclusory statements. The dissent, issued by Justice Samuel Alito and joined by Justices Neil Gorsuch and Clarence Thomas, masterfully recounts the facts of the case and the inconsistency of the majority. 

Justice Barrett’s opinion completely ignored the Court’s decision last week in National Rifle Association v. Vullo. In that case, the Court held that New York officials violated the NRA’s First Amendment rights by launching a campaign to coerce private actors to “punish or suppress the NRA’s gun-promotion activities.” 

Justice Sotomayor issued the opinion for a unanimous Court, writing, “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” 

In Murthy, the majority did not even attempt to differentiate the case from its clear precedent in Vullo. Justice Alito, however, explained the ominous message the Court sent through the two opinions.

What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by.

Further, the majority opinion is bereft of references to the perpetrators, their “high positions,” or their statements of coercion. Justice Barrett does not mention Rob Flaherty or Andy Slavitt – the two main henchmen behind the Biden Administration’s censorship efforts – a single time in her holding. The dissent, however, devotes pages to recounting the White House’s ongoing censorship campaign.

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