On the eve of the first presidential candidate debate, the Supreme Court gave a huge boost to Joe Biden to help him “fix” the 2024 election with maybe its worst decision of the year. It remains to be seen whether the court’s refusal to stop federal censorship will be a wooden stake in the credibility of American democracy.
The court ruled in the case of Murthy v. Missouri, a lawsuit brought by individuals censored on social media thanks to federal threats and machinations. Court decisions last year vividly chronicled a byzantine litany of anti–free speech interventions by multiple federal agencies and the White House. On July 4, 2023, federal judge Terry Doughty condemned the Biden administration for potentially “the most massive attack against free speech in United States history.” A federal appeals court imposed injunctions on federal officials to prohibit them from acting “to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce … posted social-media content containing protected free speech.”
State censorship
The decisions documented how the FBI, Biden White House, U.S. Surgeon General, and other federal agencies have sabotaged Americans’ freedom of speech. If you tried to complain about COVID lockdowns, or school shutdowns, or even about whether mail-in ballots caused fraud — your online comments could have been suppressed thanks to threats and string-pulling by the feds or by federal contractors. Conservatives were far more likely to be censored than liberals and leftists.
But the Supreme Court in late June decided to overlook all those abuses. There will be no injunction to stop the White House or federal agencies or federal contractors from suppressing criticism of Biden or his policies before the 2024 election. In a 6–3 decision, the Supreme Court gave the benefit of the doubt to federal browbeating, arm-twisting, and jawboning, regardless of how many Americans are wrongfully muzzled.
The Biden censorship industrial complex triumphed because most Supreme Court justices could not be bothered to honestly examine the massive evidence of its abuses. The majority opinion, written by Justice Amy Coney Barrett, whined that “the record spans over 26,000 pages” and, quoting an earlier court decision, scoffed that “judges are not like pigs, hunting for truffles buried in the record.”
Will that line catch on with school kids? When asked whether they did their homework, they can quote Justice Barrett and tell their teachers that they are “not like pigs hunting for truffles buried in the record” of all their class assignments.
“Lack of standing” a total cop-out
Rather than swine groveling in the muck, the Supreme Court instead disposed of this landmark case on a quibble, putting their legal pinkies up in the air like a white-wine drinker at a cocktail reception. The court ruled that the plaintiffs — including two state governments and eminent scientists banned from social media — did not have “standing” because they had not proven to negligent justices (how many pages in the files did they actually read?) that federal intervention and string-pulling injured them.
Bizarrely, the court denied standing even after conceding that it “may be true” that social-media platforms “continue to suppress [plaintiffs] speech according to policies initially adopted under Government pressure.”
But so why is this not a problem? Did the court decide to hold the government innocent unless there were signed confessions from White House and FBI officials, or what?
Lack of standing was the same legal ploy the Supreme Court used in early 2013 to tacitly absolve the National Security Agency’s vast illegal surveillance regime. After the Supreme Court accepted a case on warrantless wiretaps in 2012, the Obama administration urged the Justices to dismiss the case, claiming it dealt with “state secrets.” A New York Times editorial labeled the administration’s position “a cynical Catch 22: Because the wiretaps are secret and no one can say for certain that their calls have been or will be monitored, no one has standing to bring suit over the surveillance.”
Cynical arguments sufficed for five of the justices. Justice Samuel Alito, writing for the majority, declared that the Court was averse to granting standing to challenge the government based on “theories that require guesswork” and “no specific facts” and fears of “hypothetical future harm.” The Supreme Court insisted that the government already offered plenty of safeguards — such as the FISA Court — to protect Americans’ rights. “Lack of standing” didn’t prevent former NSA employee Edward Snowden from blowing the roof off the NSA.
When the court heard oral arguments in this case in March, most of the justices seemed clueless about the sordid record of government abuses. Maybe the outcome was a foregone conclusion when Justice Ketanji Brown Jackson blathered that “my biggest concern” is “the First Amendment hamstringing the government in significant ways in the most important time periods.” To sanctify censorship, Jackson repeatedly invoked the specter of legions of American teenagers jumping out of windows thanks to a social-media “challenge.”
So to save the children, Jackson tossed the First Amendment out the window instead. Unfortunately, five other justices joined the defenestration. Washingtonians presume the First Amendment is archaic because Americans have become village idiots who must be constantly rescued by federal officials.
But the whole point of the Bill of Rights is to hamstring would-be federal tyrants.
When a federal appeals court heard arguments on the case, Judge Don Willett said he had no problem with federal agencies publicly criticizing what they judged to be false or dangerous ideas. But that wasn’t how Team Biden compelled submission: “Here you have government in secret, in private, out of the public eye, relying on … subtle strong-arming and veiled or not-so-veiled threats.” Willett vivified how the feds played the game: “That’s a really nice social media platform you’ve got there; it would be a shame if something happened to it.”
This case was framed by Team Biden as whether the government would have the freedom to intervene against misinformation. Much of the press presumes that federal agencies are an infallible Oracle of Delphi.
Censorship and disinformation: two peas in a pod
But the issue was censorship, not the latest self-serving definitions of “misinformation” to emerge from inside the Washington, D.C., beltway. Portraying the issue as one of fighting misinformation preemptively grants a halo to federal censors. Too often, misinformation is simply anything that makes people mistrust the government.
The biggest “misinformation” of the COVID pandemic was Biden’s promise during a CNN town hall in July 2021: “You’re not going to get COVID if you have these vaccinations.” Subsequent waves of Delta, Omicron, and other COVID variants ravaged the credibility of Biden and federal COVID policymakers. The Washington Post castigated the CDC for withholding COVID information, noting that its “overly rosy assessments of the vaccines’ effectiveness against delta may have lulled Americans into a false sense of security.” But Biden continued to sound clueless on the issue. Five months after the CDC conceded the failure of the vaccines to prevent transmission, Biden announced in December 2021: “This is a pandemic of the unvaccinated. That’s the problem. Everybody talks about freedom … not to have a shot or have a test. Well, guess what? How about patriotism?”
After it became undeniable that the vaccines failed to prevent transmission and infection, the Biden administration trumpeted the notion that the vaccines prevented severe illness that would lead to hospitalization or death. That was the fallback justification for Biden’s dictate in September 2021 that 100 million adults must be injected with COVID vaccines. In a CNN town hall the following month, Biden derided vaccine skeptics as murderers who only wanted “the freedom to kill you” with COVID.
Shortly before Christmas 2021, Biden decreed: “We are looking at a winter of severe illness and death for the unvaccinated.” A few days later, he declared that “almost everyone who has died from COVID- 19 in the past many months has been unvaccinated.” But Team Biden was again pummeling Americans with misinformation.
Federal policymakers knew that the vaccines were massively failing to prevent fatalities but covered it up. In October 2021, the CDC had ceased publishing data showing soaring deaths among the fully vaxxed because the data “might be misinterpreted as the vaccines being ineffective,” the New York Times later revealed. Some state governments continued to publish COVID death data despite the CDC data lockdown. Oregon officially classified roughly a quarter of its COVID fatalities between August and December as “vaccine breakthrough deaths.” According to the Vermont Department of Health, “Half of the [COVID] deaths in August were breakthrough cases. Almost three-quarters of them in September were.” The CDC later admitted that, by early 2022, most COVID fatalities were fully vaxxed.
Team Biden’s censorship went far beyond pressuring social-media companies “to censor misinformation regarding climate change, gender discussions, abortion, and economic policy,” as Judge Doughty noted last year. A confidential 2022 DHS document detailed pending crackdowns on “inaccurate” information on “racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”
Because much of the censorship in recent years was inflicted by federal contractors, the Supreme Court held that Uncle Sam is effectively blameless. But as Justice Samuel Alito dissented, “Government officials may not coerce private entities to suppress speech.” Alito lamented that the court signals that “if a coercive campaign is carried out with enough sophistication,” it could “stand as an attractive model for future officials who want to control what the people say, hear, and think.”
The Supreme Court effectively dropped an Iron Curtain to shroud federal censorship like it previously did for torture atrocities. Two years ago, the court entitled the CIA to continue to deny its outrages despite worldwide exposes of its crimes. The Supreme Court ludicrously declared that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.” Associate Justice Neil Gorsuch dissented, warning that “utmost deference” to the CIA would “invite more claims of secrecy in more doubtful circumstances — and facilitate the loss of liberty and due process history shows very often follows.” Gorsuch noted that the Supreme Court was granting the same type of “crown prerogatives” to federal agencies that the Declaration of Independence describes as evil.
The federal district and federal appeals court recognized that federal censorship is a clear and present danger to American democracy. What if the FBI browbeats social-media companies into suppressing new revelations of kickbacks Biden received the same way the FBI helped suppress the 2020 New York Post story of Hunter Biden’s laptop?
What if White House aides verbally bludgeon outlets to silence any comments on Biden’s shuffling gait and cluelessness, like they suppressed jokes about COVID policy in 2021?
What if federal agencies again launch a concerted campaign to silence any criticisms on mail-in ballots spurring deluges of fraud, as happened before the 2020 election?
It is a sad day when Supreme Court justices behave like shiftless members of Congress who vote for a thousand-page bill that they never bothered to read. In lieu of constitutional rights and “government under the law,” the Supreme Court tells Americans they only deserve “plausible deniability” for government crimes. If we later learn that federal censorship changed the outcome of the 2024 election, will the Supreme Court shrug and simply tell citizens to recite “Never mind” twenty times? Unfortunately, there is no such thing as retroactive self-government.
This article was originally published in the September 2024 issue of Future of Freedom.