When the U.S. Supreme Court handed down its opinion in NRA v. Vullo, I was delighted. Writing about it at the time, I praised “a unanimous opinion written by the court’s most left-leaning justice in a case in which the ACLU represented the NRA,” and added, “If it wasn’t clear before, it’s crystal clear now. The First Amendment forbids even indirect attacks on Americans’ expressive rights.”
Sadly, I spoke to soon. A few weeks after Vullo, the court handed down another opinion that significantly muddies the waters. The court’s opinion in Murthy v. Missouri doesn’t repudiate the fundamental principle it annunciated in Vullo—government may not use its influence over private parties as an indirect method for suppressing speech. Nevertheless, it’s going to make it rather hard for parties whose speech is suppressed in that way to get their day in court.
In 2023, five individual plaintiffs and the attorneys general of Missouri and Louisiana filed a lawsuit against a group of federal officials, including President Biden and Surgeon General Vivek Murthy. The plaintiffs claimed that federal officials had violated their rights under the First Amendment by convincing social media companies like Facebook and Twitter to suppress their speech about topics like the efficacy and safety of mask mandates, lockdowns, various covid treatments, and so forth.
Some relevant facts are beyond dispute. Everybody knows that government officials encouraged social media companies to suppress unwanted speech throughout the period. Everybody knows that the social media companies suppressed that speech. Though not necessarily relevant, everybody also knows that much of the suppressed speech turned out to be more reliable than the preferred speech the government was promoting. The only substantive issue in the case, therefore, was whether the officials who wanted the speech suppressed crossed the line between permissible persuasion and impermissible coercion. For what it’s worth, every judge who has considered that question, including the dissenters in Murthy—Justices Alito, Thomas, and Gorsuch—has found that they probably did.
Unfortunately, the majority opinion written by Justice Barrett refused to reach the substantive issue. The plaintiffs had asked for an injunction ordering the government to stop suppressing their speech, but the majority found that they lacked standing to even make such a request. It held that they could do so only if they could show, not merely that the government had harmed them in the past by improperly using its influence to suppress their speech, but also that it was likely to harm them in the future by doing so again. According to the majority, the plaintiffs failed to make that showing.
Justice Alito and the other dissenters reached a different conclusion, and I found their arguments compelling. Other analysts disagree. One thing is clear, however. The Murthy opinion will encourage collusion between government agencies and corporate media to suppress unwanted speech of all kinds. Remember, the Biden administration didn’t just persuade the socialmedia companies to suppress speech about the origin of covid and the government’s response. It also persuaged them to suppress speech about Hunter Biden’s laptop and irregularities in the 2020 election. That ought to worry everyone who appreciates the value of freedom of thought and expression.
Why did SCOTUS reach such different results in Vullo and Murthy? I suspect part of the explanation is that the court affords more respect and deference to federal agencies than state agencies. It was clear during oral argument in Murthy that many of the justices think it’s right and proper for the security services and the President to use their influence to suppress “misinformation” when public health and national security are involved. After what we saw during 2020 and 2021, I find that surprising, but that really seems to be what they think. I don’t know what it would take to make them more skeptical.
