Tag: scotus

SCOTUS Declines To Punish the Feds for Suppressing Social Media Speech

The Supreme Court will allow federal agencies to resume widespread communication with social media companies for the purposes of suppressing controversial speech. For everyone who was perturbed by the Twitter Files and Facebook Files—which revealed a vast web of government pressure on private actors, called jawboning—this is a regrettable outcome.

The case was Murthy v. Missouri—also known as Missouri v. Biden—and involved a group of individuals who were kicked off Facebook and Twitter. They contended that the platforms took such actions at the behest of the federal government. The Court held 6-3 that the plaintiffs lacked standing to bring such a case and thus the lower court, the 5th Circuit, erred in prohibiting the government from engaging in said communications with social media companies.

Writing for the majority, Associate Justice Amy Coney Barrett explained that the plaintiffs failed to offer up overwhelming evidence that government malfeasance was the cause of their woe.

“The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation,” she wrote. “And while the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. The Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.”

In his writeup for The Volokh Conspiracy, Case Western Reserve University law professor Jonathan Adler notes other standing issues: The plaintiffs failed to show that a repeat injury was likely, for instance, which is a requirement for injunctive relief.

“The Court emphasizes that it is always more difficult to show standing when the alleged injury ‘results from the independent action of some third party not before the court,’ in this case the social media companies,” writes Adler.

Three of the justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—saw matters differently. In dissent, Alito expressed the view that the plaintiffs were being held to too high a standard, and that the evidence of government suppression was quite extensive.

“In sum, the officials wielded potent authority,” wrote Alito. “Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield.”

Alito’s dissent includes a lengthy summary of the dubious actions taken by the federal government to induce social media companies to remove contrarian COVID-19 content; the justice concludes that White House communications staffers badgered Facebook into compliance.

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Supreme Court Turns Away COVID-19 Vaccine Appeals

U.S. Supreme Court justices on June 24 rejected appeals brought over COVID-19 vaccines by Children’s Health Defense (CHD), a nonprofit founded by Robert F. Kennedy Jr., an independent candidate running for president.

The nation’s top court rejected an appeal seeking to overturn lower court rulings that found that CHD and its members lacked standing to sue the Food and Drug Administration (FDA) over its emergency authorizations of COVID-19 vaccines for minors.

The justices also rebuffed another CHD appeal in a case that challenged the COVID-19 vaccine mandate imposed on students at Rutgers University, a public college in New Jersey.

The Supreme Court did not comment on either denial. It included them in a lengthy list dealing with dozens of cases.

“Disappointing that the courts are closed to FDA fraud harming millions of Americans,” Robert Barnes, an attorney representing CHD in the FDA case, told The Epoch Times in an email.

He called for Congress to pass reforms.

Julio Gomez, an attorney representing CHD in the Rutgers case, told The Epoch Times in an email that the Supreme Court’s denials marked a sad day because clarity is needed on vaccines and the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a city’s law requiring vaccination against smallpox.

Mr. Gomez pointed to a recent federal appeals court ruling that determined that Jacobson did not apply to a case filed against a vaccine mandate in California because plaintiffs had produced evidence that the COVID-19 vaccines do not prevent the spread of COVID-19.

Lawyers for Rutgers and the government did not return requests for comment.

In the FDA case, CHD and parents in Texas and Florida argued that the regulatory agency cleared COVID-19 vaccines under emergency authorization despite COVID-19 posing less risk than influenza to children and without adequate clinical testing. The FDA also wrongly promoted the vaccines, the plaintiffs alleged.

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SCOTUS Makes It Easier for Victims of Retaliatory Arrests To Vindicate Their First Amendment Rights

When someone claims to have been arrested in retaliation for constitutionally protected speech, what sort of evidence is necessary to make that case? Five years ago in Nieves v. Bartlett, the Supreme Court held that an arrest can violate the First Amendment even if it was based on probable cause, provided the claimant can present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Today in Gonzalez v. Trevino, the Court said that showing does not require “very specific comparator evidence” indicating that “identifiable people” engaged in very similar conduct but were not arrested.

“This is a great day for the First Amendment and Sylvia Gonzalez, who has courageously fought against retaliatory actions by government officials,” says Anya Bidwell, a senior attorney at the Institute for Justice, which represents Gonzalez, a former Castle Hills, Texas, city council member who says her political opponents engineered her arrest on a trumped-up charge of tampering with a government document. The document in question was a petition that Gonzalez herself had spearheaded, calling for the replacement of City Manager Ryan Rapelye. Gonzalez had run for office on a promise to seek Rapelye’s removal, and she claimed his allies were determined to punish her for that position.

During a May 2019 city council meeting that addressed complaints about Rapelye’s performance, Gonzalez picked up the petition, which had been presented to the council, and placed it in her personal folder. She says she did that accidentally. But Mayor Edward Trevino, Police Chief John Siemens, and Alexander Wright, a “special detective” assigned to investigate Gonzalez, accused her of deliberately removing the document to avoid scrutiny of alleged improprieties in collecting signatures for the petition.

As a result, Gonzalez was briefly jailed and suffered the attendant damage to her reputation. Bexar County District Attorney Joe Gonzales, according to Gonzalez’s Supreme Court petition, “dropped the charges as soon as he learned about them.” Trevino et al. nevertheless achieved what Gonzalez says was their goal all along. “Gonzalez was so hurt by the experience and so embarrassed by the media coverage of her arrest,” the petition says, that “she gave up her council seat and swore off organizing petitions or criticizing her government.”

In July 2022, the U.S. Court of Appeals for the 5th Circuit rejected Gonzalez’s First Amendment claim against Trevino, Siemens, and Wright, saying it was doomed by her failure to cite other cases in which people had not been arrested for conduct like hers. “Were we writing on a blank slate,” Judge Kurt D. Engelhardt wrote in the majority opinion, “we may well agree” that “the Constitution ought to provide a claim here, particularly given that Gonzalez’s arrest was allegedly in response to her exercise of her right to petition.” But “Nieves requires comparative evidence,” he said, “because it required ‘objective evidence’ of ‘otherwise similarly situated individuals’ who engaged in the ‘same’ criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short.”

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Schumer Seeks Bill to Ban Bump Stocks After Supreme Court Ruling

Senate Majority Leader Chuck Schumer (D-N.Y.) on June 14 called for legislation to outlaw bump stocks after the Supreme Court struck down a President Donald Trump-era ban on the gun accessory.

A 6–3 opinion by the high court found that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) exceeded its authority when it interpreted a federal firearms statute to outlaw the use of bump stocks. Bump stocks are attached to the butt end of a rifle, causing them to fire again by bumping against the finger on recoil.

“As I warned the Trump administration at the time, the only way to permanently close this loophole is through legislation. Senate Democrats are ready to pass legislation to ban bump stocks but we will need votes from Senate Republicans,” Mr. Schumer said in a statement.

The ATF in 2018, with the support of President Trump, reversed its earlier position and declared bump stocks illegal in response to the 2017 mass shooting in Las Vegas, in which a gunman used firearms equipped with bump stocks to fire multiple guns more rapidly, killing 60 and leaving hundreds wounded.

Supreme Court Justice Samuel Alito filed a concurrence on June 14 that emphasized Congress’s role. “There is a simple remedy for the disparate treatment of bump stocks and machineguns,” he said. “Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.”

Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee,called the Supreme Court decision “deeply disappointing.” 

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Supreme Court Rules That US Government Must Cover Native American Health Care

The Supreme Court ruled 5–4 on June 6 that the federal government will have to cover Indian tribes’ costs incurred in operating tribal health care programs.

The majority opinion in Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe was written by Chief Justice John Roberts, joined by all three liberal justices and one conservative.

U.S. Health and Human Services (HHS) Secretary Xavier Becerra was the petitioner in both cases. He appealed unfavorable rulings by lower courts.

The respondent, the San Carlos Apache Indian Tribe, is based in Arizona. The other respondent, the Northern Arapaho Tribe, is based in Wyoming.

The ruling means the U.S. government will have to pay for overhead costs related to health care that the tribes provide under a federal law intended to give Native Americans greater control.

“Aside from being inconsistent with the statute’s text, [the government’s] failure to cover contract support costs for healthcare funded by program income inflicts a penalty on tribes for opting in favor of greater self-determination,” the majority opinion states.

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Elon Musk’s X Urges Supreme Court for Review After Jack Smith Obtained Trump Files

Elon Musk’s X Corp. has asked the U.S. Supreme Court to consider stepping in against a process that lets officials obtain information from social media companies and bars the companies from informing people whose information is handed over.

The process wrongly enables officials to “access and review potentially privileged materials without any opportunity for the user to assert privileges—including constitutional privileges,” lawyers for X said in a filing to the nation’s top court.

Unsealed documents in 2023 showed that X provided data and records from former President Donald Trump’s Twitter account to special counsel Jack Smith after Mr. Smith obtained a search warrant.

X was blocked from informing President Trump by a nondisclosure order that Mr. Smith also obtained.

The order said disclosing the warrant would result in “destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation,” and let President Trump “flee from prosecution.”

X challenged the order, arguing it violated its First Amendment rights and noting that President Trump might have reason to claim executive privilege, or presidential privilege. The company wanted to alert the former president so he could assert the privilege, but U.S. District Judge Beryl Howell ruled against it, claiming during a hearing that the only reason X was issuing the challenge was “because the CEO wants to cozy up with the former president.”

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Samuel Alito’s ‘Appeal to Heaven’ Flag Got Retconned

Samuel Alito has refused to recuse himself from upcoming cases relating to the January 6 Capitol riot. The Supreme Court associate justice told Congress earlier this week that Democrats’ insistence that he does so was unreasonable, saying, “I am therefore duty bound to reject your recusal request.”

Why have so many Democratic politicians and media figures decided that Alito should sit out from January 6 cases? They believe that he has proven himself to be sympathetic to former President Donald Trump’s efforts to overturn the results of the 2020 election—and they cite as evidence two flags that were flown on Alito’s properties.

One was an upside-down American flag, and the other was a Pine Tree flag bearing the message “an appeal to heaven.” Many in the media have abruptly decided that both flags telegraph agreement with the right’s pro-insurrection camp. CNN called the “Appeal to Heaven” flag a “symbol for supporters of former President Donald Trump.” The New York Times noted that both flags were carried by rioters during the January 6 attack on the U.S. Capitol. MSNBC insisted that the Pine Tree flag was not just a pro-insurrection flag but also a Christian nationalist flag and implied that Alito should recuse himself from abortion-related cases as well.

Yet the idea that either the Pine Tree flag or flying the American flag upside-down always and everywhere endorsements of Trump’s election-related malfeasance is ludicrous. The American flag is commonly turned upside-down by activists representing all sorts of issues and usually represents dissatisfaction with the current state of the country. The “Appeal to Heaven” flag has equally broad usage; it originated during the Revolutionary War and quotes the philosopher John Locke in defense of rebellion against unjust authority. Protesters have borrowed it for their own purposes throughout American history. The Black Lives Matter movement was using it just a few weeks before January 6.

It is certainly true that some of the people who smashed the windows of the U.S. Capitol and feuded with police were carrying this flag, the Gadsden flag, and other icons of liberty—including the American flag itself. That does not mean these flags should be considered exclusive hallmarks of the far right. In fact, people ought to resist ceding pro-liberty iconography to the far right.

Alito says that he had nothing to do with the flags, which were put up by his wife during a dispute with one of their neighbors. It is certainly possible that Martha-Ann Alito is a supporter of the Stop the Steal movement. (Associate Supreme Court Justice Clarence Thomas’s wife, Ginni Thomas, was certainly sympathetic.) The flags are not compelling evidence of this, however; nor would it necessarily mean that Alito should recuse himself from such cases. Would a liberal justice be expected to recuse from a case related to gay marriage if they flew the pride flag? Or a criminal justice–related case if they had a Black Lives Matter sign on their front yard? No.

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‘An Embarrassing Mistake’: Neil Gorsuch Rails Into Florida’s Use of 6-Person Juries

The right to a trial by jury was designed to be part of “the heart and lungs of liberty,” enshrined into the Constitution to protect people “against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs,” according to John Adams.

It is, in theory, still supposed to do that. But the Founders would likely be dismayed by the ways in which the government has watered down that right since their passing.

Supreme Court Justice Neil Gorsuch rebuked one such way today: the use of six-member juries, as opposed to the historical practice of 12-person panels.

His opinion was pegged to Cunningham v. Florida, a case concerning Florida woman Natoya Cunningham who was sentenced to eight years in prison after a six-person jury found her guilty of aggravated battery and retaliation against an informant to whom her nephew sold crack. Florida is one of six states—the others are Arizona, Connecticut, Indiana, Massachusetts, and Utah—that permits either six- or eight-person panels for such criminal trials.

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Supreme Court sides with NRA in free speech case against ex- New York official

The Supreme Court on Thursday backed the National Rifle Association in a First Amendment ruling that will make it harder for state officials to put pressure on advocacy groups.

The decision means the NRA may sue a former New York official, Maria Vullo, who pressed banks as well as insurance companies to stop associating with the NRA after a 2018 mass shooting at a Parkland, Florida, according to CNN.

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Mrs. Alito and the Bad Flag

The New York Times apoplectic over basically nothing: “At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display,” reads a New York Times headline from yesterday.

According to the Times, an upside-down American flag was flown at Supreme Court Justice Samuel Alito’s house for a few days in January 2021—between the January 6 Capitol riot and President Joe Biden’s inauguration. The nation’s esteemed paper of record suggests this action indicates that Alito thinks the election was stolen from former President Donald Trump.

There is very little evidence available to make this case. People fly upside-down flags for all kinds of reasons; it typically signals “SOS” or a sense that the country is horribly off course. People have historically flown flags in this manner out of protest for the Vietnam War, out of protest for the Supreme Court’s 2022 decision to overturn Roe v. Wade, to contest election results (believing the election was stolen or that voter fraud was rampant), or—and don’t get the two confused—to signal displeasure with the election results.

Alito reports that his wife was the one who flew the flag in this manner and that it concerned a dispute with a neighbor who posted an anti-Trump sign in their yard, following the election, that used expletives. Mrs. Alito was reportedly angered by this, and flew her flag upside-down in response. It is very hard to tell what intentions were behind one single gesture, reportedly not even done by the justice himself, and no account from neighbors or friends of the Alito family has bolstered the idea that Mrs. Alito is a “Stop the Steal” type.

This reminds me of when media outlets and the Anti-Defamation League claimed the “OK” symbol was actually a white supremacist gesture. If you look hard enough, you can find disturbing symbols anywhere you look, but you must sometimes suspend logic and reason in order to do so. This does not seem like a situation where a sitting Supreme Court justice is supporting overthrowing election results; it looks like a situation where The New York Times is straining to make that the narrative.

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