Now that the U.S. Supreme Court has reversed a sweeping injunction on government censorship of social media companies, Congress must enact its own speech protections, Wyoming’s lone U.S. House representative said Thursday.
Republican Rep. Harriet Hageman’s statement came in response to the U.S. Supreme Court’s 6-3 Wednesday ruling that reverses an injunction in the case Murthy v. Missouri, which had blocked the federal government from coercing social media companies into censoring protected speech.
“The courts have failed to remedy this blatant censorship; however, the ultimate solution lies with Congress,” wrote Hageman in a Thursday email to Cowboy State Daily. “There is a strong need for oversight and legislative reforms.”
Hageman pointed to the House Judiciary Committee’s Feb. 29 passage of a bill she co-sponsored and co-wrote, the Censorship Accountability Act.
If it became law, the bill would give people an avenue to sue federal officials who violate the First Amendment to the U.S. Constitution.
Hageman said the Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government will keep investigating what she calls the “unconstitutional proxy use of social media companies to censor Americans’ speech.”
But First, Justice Barrett
Justice Amy Coney Barrett authored Wednesday’s six-justice majority opinion siding with the Biden administration in Murthy v. Missouri, known formerly as Missouri v. Biden.
Barrett’s majority never took a stance on whether the Biden administration was right or wrong to badger Facebook executives for months in 2021 to make Facebook censor and stifle memes and other posts by vaccine skeptics.
But the majority reversed the injunction because the handful of individuals and states who sued federal agencies in this case didn’t have standing to ask for a prospective injunction. Meaning, they couldn’t link and isolate the harms they suffered to specific government agencies.
The majority found that among the plaintiffs, health care activist Jill Hines had the best showing for standing.
She may have been able to ask for money damages for what the federal government did to censor her in the past, but she couldn’t link those actions to a likelihood that the government will do so in the future.
But Hines wasn’t asking for money damages. She was asking for a block on the government’s future, prospective censorship campaigns.
“The plaintiffs must show a substantial risk that, in the near future, at least one (social media) platform will restrict the speech of at least one plaintiff in response to the actions of at least one government defendant,” wrote Barrett. “On this record, that is a tall order.”
We Might Regret This
In his sharp dissent joined by Justices Clarence Thomas and Neil Gorsuch, Justice Samuel Alito called the federal officials’ social media censorship campaign in this case “blatantly unconstitutional,” adding that, “the country may come to regret the Court’s failure to say so.”
Alito derided the majority’s ruling, saying the court has now coached top federal officials into censoring Americans, but they’re being sneaky about it. He reflected on the high court’s recent 9-0 ruling against a New York state official who tried to get banks and insurance companies to cut ties with the National Rifle Association.
“Officials who read today’s decision together with (the NRA case) will get the message,” says the dissent. “If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”
Alito argued further that Hines has shown that she has standing.
“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,” wrote Alito. “Facebook repeatedly yielded … Hines was indisputably injured.”
Alito emphasized Facebook’s conciliatory tone toward White House officials, even after they accused the outlet of sparking the Jan. 6, 2021, breach of the U.S. Capitol, and even after President Joe Biden said the outlets were “killing people” by allowing vaccine skepticism to spread.
Sometimes True
Barrett’s majority opinion repeatedly calls the vaccine-skeptical posts and other targeted speech “misinformation.”
Alito’s dissent calls those “disfavored views,” and notes that the government also sought to censor true information, along with false and potentially harmful speech.
“When the pandemic began, Facebook began demoting posts supporting the theory that the virus leaked from a laboratory,” reads a footnote in the dissent.
Facebook toughened its response, removing such posts after “tense conversations” with the Biden administration in February 2021.
The high court learned about those conversations only because the House Judiciary Committee conducted an investigation into them last year. Around that same time, the FBI director conceded that COVID-19 “most likely” originated from a lab incident.
What Scalia Would Have Done
Though the dissenting justices cast it as a doomsday decision, finding the plaintiffs lacked standing in this case is something the late conservative Justice Antonin Scalia would have done as well, according to Steven Calabresi, who is a constitutional law professor and former staffer for President Ronald Reagan.
And it was the right outcome, wrote Calabresi in a Wednesday column on Reason.com.
“The fact that the Biden Administration threatened Facebook with an antitrust suit to force it to delete, among others, Robert F. Kennedy (Jr.’s) posts about vaccine skepticism during COVID does not mean that the Biden administration will behave this way in the future,” he wrote.
Still, Alito’s “excellent dissent usefully summarizes a sustained campaign of brutal and vicious threats made by the Bident administration against Facebook during COVID,” Calabresi added.
Hageman, conversely, said she disagrees with the majority on the standing issue.
Irreparable Harm
In its appeal of the injunction, the federal government argued that the injunction would cause "irreparable harm" by blocking agencies from communicating urgent safety or security needs to social media companies. It called the earliest injunction vague and broad, saying many legitimate government messages would slip through the cracks.
The U.S. Supreme Court may get another chance to address whether the level of coercion the government exhibited in 2021 and 2022 was unconstitutional, as the similar but more isolated and specific social-media censorship case Berenson v. Biden remains active.
Clair McFarland can be reached at clair@cowboystatedaily.com.
