Murthy v. Missouri - Post-Decision SCOTUScast

of the Federalist Society. Today we have a moderated discussion on Murthy versus Missouri, in which the Supreme Court issued a six ' to three decision on June twenty sixth, twenty twenty four. It is my honor to introduce our moderator today, Brent score Up. Brent is a legal fellow at the Cato Institute's Center for Constitutional Studies, and with that I like to turn things over to Brent to introduce our guests.

New York State Court of Appeals. So I'd like to go first to Janine and provide the audience, viewers, listeners who perhaps weren't to wear the Murcy case before last week, but you know, follow the Supreme Court and have an interest in free speech issues. You and NCLA represent a few clients in this case, and so if you take a few minutes, please cover the facts in this case, your clients, as well as the District Court and Fifth Circuit decisions in the case.

at Harvard and Stanford. We also represented Aaron Kerriotti as a psychiatrist who declined to get the COVID vaccine because he had natural immunity and lost his professorship as a result, and Jill Hines, a health freedom worker in Louisiana, and their core allegation was that they were censored on social media, but not essentially because of the of the platform's content moderation policies, but because the government had inserted itself into

COVID related censorship. Now, I also want to clarify there's another plaintiff in the case, Jim Hoff, who we didn't represent, who was alleging interference government interference with his speech that was more about the twenty twenty election in the Hunter Biden laptop, since the government was also involved in trying

to get those topics suppressed on social media. So the facts in this case, it was a twenty thousand page record, even though this was just up on appeal from a preliminary in junction, so it's hard to summarize them briefly.

suppressing viewpoints that it disagrees with. So the core allegations some additional allegations were raised in the complaint, but the core, especially on the preliminary junction, the core complaint was First Amendment violations, and the idea was that the government was sort of instrumentalizing these private companies to accomplish its censorship aims, and that was effectively a First Amendment violation because the government can't use private industry to accomplish what it can't directly.

So the District Court in the Western District of Louisiana found for us almost entirely, found that the plaintiffs had standing and found that it was well this was on a preliminary injunction, but that the government had likely violated their First Amendment rights and that the harm was irreparable. So granted the preliminary in junction. It was mostly upheld

by the Fifth Circuit. The Fifth Circuit kicked out a couple of the defendants, so they found there wasn't enough evidence that Niad and Ih, so mostly we're talking about doctor Fauci, that he was actually involved in this censorship, so he was not in the injunction.

More importantly, though, the court presented a factual analysis that was so riddled with airs and fabrications that it was clearly going to be useless to any reviewing court. Also, the judge bought into the censorship Industrial Complex narrative in which the Stanford Internet ob Observatory was supposedly a puppet of the government through SISA instead of a group doing its own independent research and advocacy and let's not forget

exercising its own First Amendment rights. So those problems trickled up to the Supreme Court. The government had to say in a footnote in its reply that it couldn't possibly respond to all the inaccuracies that were floating around, which was true. Justice Soda Mayor said an oral argument that she couldn't untangle all the inaccuracies in the planet of its brief. She said, quote, you know, I have such a problem with your brief, counselor you omit information that

changed is the context of some of your claims. You attribute things to people who it didn't happen to dot dot dot. I don't know what to make of all this. And at the oral argument, the SG of Louisiana. You know, I'm afraid he didn't really help matters. He kind of bounced around. The Justice has struggled to understand him. Justice Barrett said she wasn't even sure what his argument was.

He said, he you know, I'm a First Amendment purist, and then he wasn't able to present the scope of the categories of unprotected speech correctly when talking with Justice Kagan. So the opinion didn't end up really being a surprise. At footnote four, the justices, the majority wrote the Fifth Circuit relied on the District Court's factual findings, many of which unfortunately appear to be clearly erroneous. And again, I mean that's true. Throughout our discussion, it's important to remember

that the district courts were thoroughly botched the factual record. Here, the majority noted that neither the District Court nor the Court of Appeals made any specific causation findings with respect to any discreet instances of content moderation. It noted that Justice Alito and Descent basically had to construct a theory of causation on his own, and the Majority, for its part, basically just refused to do that. It trotted out the old line about how judges aren't pigs hunting for truffles

in the record. So in the end Justice Alito could formulate his descent kind of only by boiling things down extensively. He bypassed almost all of the sort of dish gallop of facts and allegations that had been thrown around below, and so the censorship industrial complex stuff fell by the wayside. We didn't hear anything about sort of like significant encouragement

or entanglement. He had to kind of construct for himself a Bantam Books analysis that was nothing like what the plaintiffs had presented at oral argument, where they'd argue that sort of any request by the government to take something down crosses the line. So while job voting is a really concerning issue, and I hope we can all kind of agree on that through the discussion, my take was this just wasn't really a good case to decide much

of anything. Now moving to the Supreme Court decisions, you know, once the case got narrowed down to have the majority and the dissent frame things, I do think there's reasonable disagreement over the proper outcome. You had sort of this jousting with different Supreme Court standing decisions, and maybe we can get into that more. You know, Justice Alito certainly had a point that the Court should try to apply

it standing doctrine consistently. But what you basically had was agreement, like at least at a high level, that the government exerted pressure on the platforms to moderate content relating to COVID nineteen and the twenty twenty election. But the majority said that it had to work quote to untangle the mass of the plaintiff's injuries and government communications, and once

it did that, it just couldn't find any solid links. So, you know, give one example, we heard about the Great Barrington Declaration, but the majority found that the platforms had taken action against that before there was really any communication between the platforms and the government. So I think the ultimate take home is the majority wasn't willing to engage in sort of this imaginative reconstruction of the vast record

that was plocked in a pile before it. That was kind of my biggest take home.

from their citizens. You've got you've got a bunch of different cases terminiel O Guarnieri that all discussed that the whole you know, part of the purpose of the First Amendment and part of the purpose of free speech is to enable states to really hear from their citizens so that they can be responsive to the needs and concerns of their citizens. So that's one of the theories of standing we advance here, and that's a definite state interest.

The Spreme Court didn't deny that. Instead, what it said is that you know that, well, you need to be a little bit more specific and the type of thing that you're wanting to hear. The problem, of course, is, you know, when things are being censored, nobody really knows what this universe is. You know, that's the whole point. It's being censored, and so you don't know exactly what's

going on. You don't exactly know what you're unable to hear at that point, and so the Spreme Court's kind of set up this impossible standard from the perspective of the listener's ability to identify the things that they would like to hear, but that they're unable to. The second thing that Spring Court does is it kind of just it pretty much ignores about twenty years of precedent with respect to the ability of states to bring what are

called parents potrai lawsuits against the federal government. So you've got these you've got these cases from the nineties and early two thousands where the Supreme Court allows states to do that, and basically a parents patriay action just means you're, in essence, asserting you're as certain that there's a very widespread harm to the people of Missouri to the people

of the state. And what you're essentially doing is you're certain that this this harm has become so widespread that it has in fact become an injury to the state itself. And the Spring Court allowed this in a nineteen ninety five case. The Supreme Court allowed this in a two thousand and seven case. And what they did here is they dug up dicta from a nineteen sixties case and they said and they just cite that and say, well, this is you know, the states can't bring parents potry

suits against the federal government. But if you actually look at that, that's dealing with situations where where the state isn't actually asserting its own kind of harm, it's purely asserting the third party harms of other individuals. In every single case where a state has a its own theory of harm, the US Supreme Court has allowed the state to bring a parents potry action. And the Supreme Court just completely misses that entire line of doctrine, doesn't discuss

it at all. And so I think we've got a very unusual parents potry decision from the Supreme Court on this issue that really just doesn't wrestle with that fundamental difference and what what gives us states the ability and the interest to bring a suit like this. I want to I want to respond to a couple of things that Corbyn said. I think we've got a large amount of no no surprise that you know one of the individuals represent these individuals, Uh, these pointiffs disagrees with what

Corbin said. Let let me let me just let me let me just leave it at this, which is that you know, nobody really dispeedes at the Supreme Court. Nobody really disputes that work. There were very severe First Amendment of violations that were going on. I mean, the majority opinion, for example, discusses at one point like, yeah, look like that pressure from the federal government actually altered the policies

of Facebook and Twitter and these other organizations. But then the Supreme Course says, but you know, that's a past violation. You can't necessarily get prospective relief from that. But they don't deny that they were blatant violations. The government had insinuated itself into this atmosphere and had actually physically changed the policies of Facebook and other organizations to induce further

future suppression. But I think just from a causation standpoint, if you look at the facts, if you look at what happened in July twenty twenty one, you see a rapid, much more aggressive posture from the White House, from the Surgeon General, from some of the other defendants in July twenty twenty one, much more aggressive, and then you find

an uptick in censorship after that. So it's never been our position that, you know, there hasn't been some censorship or you know, suppression or content moderation or whatever term you want to use. It's never been our position that there hasn't been some of that already going on by

the platforms. But what we identified are you know, you've got some of these discrete events July twenty twenty one, huge increase in aggression from the White House, and then you also see an increase in content moderation or suppression or censorship. And it doesn't take a genius to be able to draw that inference there. Now, look, you know you can't draw certainty inference there, but the doctrine doesn't

require any kind of certainty. It requires a likelihood. And so you know, I do want to very strongly to speed, the idea that we didn't establish causation, that we didn't do anything like that. I think the Supreme Court basically looked at the record and you know, refused to draw a single inference in our favor, which was different from the district court and different from the Court of Appeals.

the government. And I think even there, the court is insinuating that you would have to show that your specific post was censored because the government had called you out or named you.

would have characterized them. There was one email from Rob Flaherty where Flerty was using very colorful language to demand the takedown of I think a parody account of the President's granddaughter. And it wasn't about COVID misinformation, but we had actually not represented that, misrepresented that, and I think that was what was insinuated. We were showing it as part of a pattern of the government's treating these companies

who sort of subservient. So I think the idea, you know, I don't know what inaccuracy is anyone's talking about, and if Corbin would like to elaborate and be happy to respond, but I think that the lower courts were actually really understood the facts well, and I would say I don't make the Supreme Court read the record. It was clear to me that the Descent had a much greater, much better grasp of the facts. I guess, did I respond to your question?

problems with the word targeting being used. I would recommend people take a look at Stanford's a Meekus brief in the case where they get into this. And I'm sure Janine probably has disagreements with what that brief says, but I think that brief and certainly footnote four speak for themselves. I don't think Justice Barrett would make that line lightly now hopefully to say some things that Janine will agree with.

I think what we ultimately need to land on is something between the broadest possible reading of the majority opinion and the dissent, because at times the majority does I mean they never say this explicitly, but they make it sound like you need to be like named directly, and that just can't, I can't be the standard. I mean,

that's highly problematic. They noted that the platforms had, you know, independent incentives to moderate content, and I have thoughts on that, but like I know this much, that cannot possibly be like a get out of jail free card. It can't be like, well, somewhere in the mix, we have an incentive and and so you know, plaintiffs lose that can't be right, Josh. You know, I think I think it's an interesting question whether the majority agrees that there was

no violation. I mean, I don't think they ever say that explicitly. That's certainly not my read of the justices from the oral argument, but you're right, like they don't they don't come in on that. I think ultimately we have to kind of hope that like this opinion is.

because I don't want to derail us. But I thought Josh's discussion was interesting, and I'm wondering if he has thoughts on whether maybe some of the conservative justices and the majority were like spooked by Massachusetts versus EPA, seeing like a decision that maybe all of us in the room would be see as like a stretch of what states can bring in and sue on and if that maybe derailed them, And the reason I bring that up in this answer is I think there just were a

lot of hydraulic pressures on this case that might have shaped the majority opinion in ways that maybe they'll actually change course of it in future decisions.

getting from. That's what you're getting from, you know, the cottage industry, niche press that is that appears to just criticize the Supreme Court twenty four hours a day, right, Like that's kind of that's the kind of coverage you're getting. And in fact, what you get instead is, you know, a group of justices who have, for you know, their entire legal upbringing, been very, very very skeptical of standing.

And so I mean that's what you that's what you've seen this year and last year and the year before is just really just ratcheting up the standing requirements in case after case after case. So Mass v. E.

to parents patry. Spring Court is entirely wrong, and they're ignoring that line of precedents there. But you look at that end and then you know, same thing with the Department of Commerce. I think Justice Alito is right. I don't know how you can you know, the Department of

Commerce was unanimous with respect to the standing question. New York could sue because there was a predictable effect that the census question on the or the citizenship question on the census was going to lead to reduce, you know, a reduced number of individuals filling out the census. Well, of course, it's a predictable effect that when you have this kind of government pressure, there is going to be censorship.

And so I think the I think it's a similar situation where the Spreme court is kind of trying to cabin these other standing doctrines without saying so explicitly.