The Supreme Court's Superb Dissenting Opinion

Justice Alito, joined by Gorsuch and Thomas, issued a blistering critique of the Supreme Court's majority ruling in Murthy v. Missouri. At least three justices understand what is at stake here.

Three justices of the Supreme Court actually read and understood the record in our case. Justice Alito, joined by Gorsuch and Thomas, wrote an important dissenting opinion. I’d like to share a few highlights here, as it provides a roadmap to ultimately prevailing in our case.

The three dissenting justices clearly recognize that we the plaintiffs were victims of the government’s unconstitutional censorship activities:

Among these victims were two States, whose public health officials were hampered in their ability to share their expertise with state residents; distinguished professors of medicine at Stanford and Harvard; a professor of psychiatry at the University of California, Irvine School of Medicine; the owner and operator of a news website; and Jill Hines, the director of a consumer and human rights advocacy organization. All these victims simply wanted to speak out on a question of the utmost public importance.

Echoing the district court and circuit court opinions, the dissenting justices indicate the landmark importance of this free speech case:

If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years. Freedom of speech serves many valuable purposes, but its most important role is protection of speech that is essential to democratic self-government, and speech that advances humanity’s store of knowledge, thought, and expression in fields such as science, medicine, history, the social sciences, philosophy, and the arts.

Unlike the majority opinion, which took the government’s claim to be combating “misinformation” at face value, the dissenting opinion recognized that much of the speech that the government suppressed was true:

The speech at issue falls squarely into those categories. It concerns the COVID–19 virus, which has killed more than a million Americans. Our country’s response to the COVID–19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our dedication to a free marketplace of ideas demands that dissenting views on such matters be allowed. I assume that a fair portion of what social media users had to say about COVID–19 and the pandemic was of little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed. That is what inevitably happens when entry to the marketplace of ideas is restricted.

The majority opinion suggested, without evidence, that our censorship was the result of the actions of social media platforms, who may have censored us even in the absence of government coercion. The dissenting opinion explains the flaws with this unwarranted assumption:

Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, see National Rifle Association of America v. Vullo, 602 U. S. 175 (2024), and that is what happened in this case.

The record before us is vast. It contains evidence of communications between many different government actors and a variety of internet platforms, as well as evidence regarding the effects of those interactions on the seven different plaintiffs.

Alito focuses on Facebook and co-plaintiff Jill Hines as the clearest example (though by no means the only example) to illustrate the nature of the problem:

Here is what the record plainly shows. For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit. These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy.

It’s hard to know how much more harm the Supreme Court would need to see before agreeing that at least one of the plaintiffs has standing. These examples could be multiplied. By refusing to examine the record and rule on the merits, Alito suggests that the Court actually provides a roadmap for future government censorship efforts:

This evidence was more than sufficient to establish Hines’s standing to sue, and consequently, we are obligated to tackle the free speech issue that the case presents. The Court, however, shirks that duty and thus 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.

That is regrettable. 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. That is not a message this Court should send.

Alito then echoes a arguments I published in The Federalist following oral arguments, regarding the key differences between newspapers and social media companies in terms of their interactions with government:

Internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. 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 protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company. And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.

This dynamic sets social media companies up to be vulnerable to government coercion, in precisely the way we argued before the Court:

For these and other reasons, internet platforms have a powerful incentive to please important federal officials, and the record in this case shows that high-ranking officials skillfully exploited Facebook’s vulnerability. When Facebook did not heed their requests as quickly or as fully as the officials wanted, the platform was publicly accused of “killing people” and subtly threatened with retaliation.

Not surprisingly these efforts bore fruit. Facebook adopted new rules that better conformed to the officials’ wishes, and many users who expressed disapproved views about the pandemic or COVID–19 vaccines were “deplatformed” or otherwise injured.

Alito perfectly describes how this abusive Stockholm Syndrome dynamic played out between Facebook and the White House:

What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions. Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to knowhow they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. The picture is clear.

Here we have a major social media platform responding as though they are entirely subservient to government interests. The more they try to please the government by ramping up censorship, the more abusive and demanding the government becomes.

To the dubious claim that plaintiffs cannot allege potential future injuries because—on their word—the White House has backed off the social media companies, Alito (in contrast to the majority opinion) calls the government’s bluff:

The White House threats did not come with expiration dates, and it would be silly to assume that the threats lost their force merely because White House officials opted not to renew them on a regular basis.

As Alito later quips, “death threats can be very effective even if they are not delivered every day.”

Drawing an analogy to another free speech case (Vullo) that was heard on the same day as ours, Alito explains:

In Vullo, the alleged conduct was blunt. The head of the state commission with regulatory authority over insurance companies allegedly told executives at Lloyd’s directly and in no uncertain terms that she would be “‘less interested’” in punishing the company’s regulatory infractions if it ceased doing business with the National Rifle Association. The federal officials’ conduct here [in Murthy] was more subtle and sophisticated. The message was delivered piecemeal by various officials over a period of time in the form of aggressive questions, complaints, insistent requests, demands, and thinly veiled threats of potentially fatal reprisals. But the message was unmistakable, and it was duly received.

The Supreme Court majority was ready to knock down ham-fisted censorship (in Vullo) but gave a pass—at least for now—to sophisticated and debonair censorship (in Murthy).

The government’s defense of its behavior included the argument that it had the right to use the bully pulpit to “persuade” social media companies to do its bidding—”the government has free speech rights, too, don’t you see?” Alito sees right through this ruse:

This argument introduces a new understanding of the term “bully pulpit,” which was coined by President Theodore Roosevelt to denote a President’s excellent (i.e, “bully”) position (i.e., his “pulpit”) to persuade the public. But [Rob] Flaherty, [Andy] Slavitt, and other [White House] officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of the President’s bully pulpit. That stretches the concept beyond the breaking point.

In any event, the Government is hard-pressed to find any prior example of the use of the bully pulpit to threaten censorship of private speech.

To repeat what I have said many times before: this case is not about constraining the government’s speech—as they falsely claim; it’s about stopping the government from constraining the speech of U.S. citizens.

The dissenting justices argue that the majority opinion applies a “new and heightened standard” of traceability in our case (p.20). Alito explains, again using the case of co-plaintiff Jill Hines, that she clearly has standing to bring the case (and we only need one plaintiff with standing to prevail):

Here, it is reasonable to infer (indeed, the inference leaps out from the record) that the efforts of the federal officials affected at least some of Facebook’s decisions to censor Hines. All of Facebook’s demotion, content-removal, and deplatforming decisions are governed by its policies. So when the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook’s censorship decisions. Nothing more is needed. What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook’s rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.

Furthermore, the Court’s majority opinion developed a novel, higher standard of repressibility of potential future harms to avoid ruling on the merits of our case:

As with traceability, the Court applies a new and elevated standard for redressability, which has never required plaintiffs to be “certain” that a court order would prevent future harm.

Having established that the Court should have found that we have standing, Alito proceeds to analyze the record on the merits, using the following legal framework:

The principle recognized in Bantam Books and Vullo requires a court to distinguish between permissible persuasion and unconstitutional coercion, and in Vullo, we looked to three leading factors that are helpful in making that determination: (1) the authority of the government officialswho are alleged to have engaged in coercion, (2) the natureof statements made by those officials, and (3) the reactions of the third party alleged to have been coerced. 602 U. S., at 189–190, and n. 4, 191–194. In this case, all three factors point to coercion.

Although the government tries to spin their interactions with social media platforms as fairly benign, examination of the record in this regard leaves no doubt: “The totality of this record—constant haranguing, dozens of demands for compliance, and references to potential consequences—evince ‘a scheme of state censorship.’” Lest there be any doubt in this regard, “Facebook’s responses to the officials’ persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations.” Alito concludes, “In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands. And Facebook’s quavering responses to those demands show that it felt a strong need to yield.”

---

From here we return to the District Court in Louisiana for trial. where we have an excellent judge (Terry Doughty). We will be granted additional discovery, in which we anticipate getting enough additional “smoking guns” to cross the high standing bar set by the majority Supreme Court opinion. The District court has combined our case with an analogous case filed by Robert F. Kennedy, Jr., who is clearly named and targeted in several government censorship missives—so between Hines and Kennedy there should be no questions on the issue of standing, even under the novel and strict criteria that SCOTUS requires in this case.

In other words, we will prevail in the end. I anticipate being back at the Supreme Court in another year or two for the final ruling. At that point, SCOTUS will not be able to temporize or look away as they did this time. And when judges examine the record in our case, they have only reached on conclusion: the government engaged in unconstitutional censorship on a mass scale. And it has to stop.

---