by David Catron
Late Friday, the Supreme Court agreed to hear Missouri v. Biden, a case that may end the Biden administration’s circumvention of the First Amendment by outsourcing censorship to Big Tech. The case was initially filed by the states of Missouri and Louisiana, along with various private plaintiffs who allege that social media platforms censored them at the behest of federal agencies. U.S. District Judge Terry Doughty ruled for the plaintiffs on July 4, enjoining the agencies from communicating with platforms about “content moderation.” The Biden administration sought relief from the 5th Circuit Court of Appeals and lost again, making a Supreme Court clash inevitable.
In September, the Biden administration filed Murtha v. Missouri asking the Court to stay Judge Doughty’s injunction pending the Court’s disposition of the administration’s forthcoming petition for a writ of certiorari. On Friday, the Court granted the application for stay and expedited the next steps in the process by treating that application as a petition for a writ of certiorari and granting it as well. Consequently, the original plaintiffs will be able to make their case before the Court. However, in the interim, the Biden administration will once again be free to collude with Big Tech to suppress disfavored views. This perverse state of affairs prompted Justice Alito, joined by Justices Thomas and Gorsuch, to write a scathing dissent:
This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on important public issues … Today, however, a majority of the Court, without undertaking a full review of the record and without any explanation, suspends the effect of that injunction until the Court completes its review of this case, an event that may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.
Alito is justly concerned that the Biden administration will view the order as “a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.” If the past is prologue, that is precisely how the Biden administration will see the ruling. Alito also noted that the order ignored the District Court’s “extensive findings of fact that spanned 82 pages” and that the Appeals Court agreed with its opinion that the plaintiffs were subjected to “a coordinated campaign … orchestrated by federal officials that jeopardized a fundamental aspect of American life.”
This ill-conceived stay is, however, a Pyrrhic victory for the Biden administration. As Missouri Attorney Gen. Andrew Bailey tweeted on Friday, “The United States Supreme Court has granted cert in our free speech case, Missouri v. Biden. We look forward to dismantling Joe Biden’s vast censorship enterprise at the nation’s highest court.” The private plaintiffs include eminent Epidemiologist Jay Bhattacharya and prominent Biostatistician Martin Kulldorff, who were censored and deplatformed for criticizing pandemic lockdowns and vaccine mandates. They describe the Biden administration’s bizarre legal reasoning as follows:
On August 10, in an oral argument, the government told the federal judges that it has a right to violate the First Amendment because there is an ongoing pandemic, including a right to censor the truth … The administration insists that without the power to censor social media, dangerous misinformation will spread unchecked. But the government also wanted social media companies to censor true information that cut against its policy goals. For instance, social media censored accurate health information like the fact that Covid recovery provides excellent natural immunity that is better than that developed from receiving the vaccines.
That was the argument they offered to the 5th Circuit Court of Appeals in an effort to have Judge Doughty’s July 4th ruling overturned. As noted above, the judges found this line of reasoning unconvincing, though they did narrow the scope of the injunction somewhat. This is how Missouri v. Biden finally arrived on the doorstep of the Supreme Court. Drs. Bhattacharya and Kulldorff have consistently shown enormous courage in defense of the First Amendment in the face of a vicious smear campaign launched by NIH Commissars Anthony Fauci and Francis Collins. Yet, unlike many scientists, they refused to be silenced. There is a lesson to be learned here for Americans who take such things as free speech for granted.
Bhattacharya was brought to the United States by his parents when he was four. Kulldorff came here from Sweden as a college student. Both were recognized leaders in their fields until they dared to question COVID-19 orthodoxy. Yet, unlike many Americans, they understood that genuine science can’t exist in the absence of free expression, that censorship is the enemy of science. Thus, despite the best efforts of creatures like Fauci and Collins, they are now heroes to those of us who intuitively understand that the government exploited the pandemic in order to deprive us of our civil liberties. All of which leaves us with this question: Do the justices of the Supreme Court possess the courage to follow the example of these two men?
It is worrisome that the Court stayed the injunction forbidding federal agencies to abstain from communicating with Big Tech about “content moderation.” Yet it is difficult to imagine that a majority of the justices will be able to avert their eyes from the mountains of evidence that the Biden administration abused its power to control social media platforms. It doesn’t matter that Big Tech is ostensibly aligned with the left. All that really matters to them is the money. Who would you bet on: A headless administration that doesn’t have the support of its own voters or the people who overturned Roe v. Wade? The Court isn’t going to gut the First Amendment to appease corrupt politicians or money grubbing technology geeks.
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David Catron is a recovering health care consultant and frequent contributor to The American Spectator.
Photo “Drs. Martin Kulldorff and Jay Bhattacharya” by Great Barrington Declaration.
