The Supreme Court Just Opened the Door to a New Orwellian Censorship Regime

Legal experts has reported that the recent Supreme Court ruling on a case challenging the Biden administration’s censorship efforts poses a renewed threat to Americans’ online freedom of speech and expression, making it difficult to seek legal recourse before the 2024 election.

Last year, U.S. District Court Judge Terry A. Doughty issued an injunction against government agencies communicating with social media companies to suppress speech, criticizing the government’s actions as “Orwellian.”

However, with the Supreme Court lifting the Fifth Circuit’s narrower injunction in Murthy v. Missouri, officials now have greater freedom to employ similar tactics.

According to Center for American Liberty associate counsel Eric Sell, this ruling provides a roadmap for government actors at all levels to pressure social media companies into censoring disfavored speech.

The Supreme Court determined that the plaintiffs in the case, which included two states and five individuals, lacked standing to seek an injunction against the government.

Justice Amy Coney Barrett’s majority opinion stated that the plaintiffs did not establish a direct link between their past social media restrictions and the government’s communications with platforms.

She also noted that platforms have independent incentives to moderate content, making it difficult for plaintiffs to prove they were directly harmed by government requests.

Justice Samuel Alito expressed concern in his dissent that although the Supreme Court did not address the merits of the issue, its ruling could convey a message that coercive government campaigns against certain speech can go unchecked if carried out with enough sophistication.

Alito wrote that the Court “permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.”

John Vecchione, a senior litigation counsel at the New Civil Liberties Alliance, representing certain plaintiffs in Murthy v. Missouri, expressed to the DCNF that the majority’s ruling provides ample leeway for government officials to exert pressure on companies discreetly.

Following oral arguments in March, reports indicated that agencies including the FBI and the Cybersecurity and Infrastructure Security Agency (CISA) had resumed communications with social media platforms, as several justices seemed inclined to support the government’s stance.

White House press secretary Karine Jean-Pierre said in a statement following the ruling that the Court’s decision “helps ensure the Biden Administration can continue our important work with technology companies to protect the safety and security of the American people.”

The #SCOTUS decision in Murthy v. Missouri undermines the #FirstAmendment in today's digital era by allowing government censorship without accountability.

This ruling completely disregards the Founding Fathers' belief that combating problematic speech should involve promoting… pic.twitter.com/tMeQoKsnBS

— New Civil Liberties Alliance (@NCLAlegal) July 3, 2024

“If courts require very strong evidence of causal links plus an ‘ongoing’ campaign just to get standing, government agencies can use that procedural requirement to escape judicial scrutiny of even very extensive indirect censorship,” George Mason University law professor Ilya Somin wrote last week in Reason. “That problem is likely to become more severe as agencies figure out the relevant standing rules, and try to tailor their threatening communications to firms in ways that exploit them.”

If an injunction is not put in place, there is no barrier to prevent the government from replicating its 2020 actions to influence platforms to limit content during the 2024 election. As revealed in legal proceedings, officials compelled companies to censor not only COVID-19-related speech but also election-related discourse.

In 2020, CISA conducted “switchboarding” initiatives, enabling state and local election authorities to flag posts containing “misinformation” for the agency, which would then share them with social media platforms. State officials have also taken similar steps.

Attorney Sell is representing conservative political commentator Rogan O’Handley, who filed a lawsuit after his Twitter account was allegedly censored and subsequently suspended when California’s Office of Election Cybersecurity flagged a post related to the 2020 election. The Supreme Court declined to hear his case on Monday.

As the Murthy v. Missouri case goes back to the district court, Vecchione stated that they will pursue additional evidence of government coercion through discovery.

“The Supreme Court has demanded a very high standard, and if the government is going to press on that standard, well, they’ve got to drop their shorts and show us everything,” Vecchione said.

Several plaintiffs proposed that Congress intervene following the decision.

Health Freedom Louisiana co-director Jill Hines said Congress should “act immediately to defund agencies and third parties actively involved in this broadly pervasive and unconstitutional censorship scheme.” Stanford University School of Medicine professor Dr. Jayanta Bhattacharya likewise said concrete action is needed to “restore free speech rights as a central plank of the American civic religion.”

Foundation for Individual Rights and Expression Chief Counsel Robert Corn-Revere made a similar call for Congress to “take action.”

“Despite reams of evidence documenting government pressure, the court held today these plaintiffs lacked standing to sue,” he said. “FIRE is concerned about what this means for future First Amendment plaintiffs. But the majority opinion notes courts have the power to stop government attempts to pressure social media platforms when proven. That’s important.”

NCLA Chief Executive Officer Philip Hamburger wrote in a column Tuesday that the decision made the First Amendment “for all practical purposes, unenforceable against large scale government censorship.”

“The decision is a strong contender to be the worst speech decision in the court’s history,” he said.

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