The Supreme Court Punts on Censorship

Standing and the related "traceability" issue doom Murthy v. Missouri, as the Supreme Court votes 6-3 to kick the Internet censorship can down the road

The Supreme Court today punted on Internet censorship, sending free speech advocates back to the drawing board while Joe Biden’s White House celebrated.

“The Supreme Court’s decision,” said White House press secretary Karine Jean-Pierre, “helps ensure the Biden administration can continue our important work with technology companies to protect the safety and security of the American people.”

That “important work,” of course, includes White House officials sending emails to companies like Facebook, with notes saying things like “Wanted to flag the below tweet and am wondering if we can get moving on having it removed ASAP.” The Supreme Court sidestepped ruling on the constitutionality of this kind of behavior in the Murthy v. Missouri case with one blunt sentence: “Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.”

The great War on Terror cop-out, standing — which killed cases like Clapper v. Amnesty International and ACLU v. NSA — reared its head again. In the last two decades we’ve gotten used to the problem of legal challenges to new government programs being shot down precisely because their secret nature makes collecting evidence or showing standing or injury difficult, and Murthy proved no different.

I’m not going to lie. It’s a bummer. For plaintiffs like Drs. Jay Bhattacharya and Aaron Kheriaty, for their lawyers and the Attorneys General of Louisiana and Missouri who brought the case, and for those of us who worked on the related Twitter Files stories, this is certainly a disappointment. Given that the FBI and the Department of Homeland Security reportedly resumed contact with Internet platforms after oral arguments in this case in March led them to expect a favorable ruling, it’s logical to assume the Big Brothering will now resume in earnest.

“It’s a depressing day for America,” Bhattacharya agreed.