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The Supreme Court Just Opened The Door To A New Orwellian Censorship Regime

Legal experts told the Daily Caller News Foundation that the Supreme Court's decisions in recent cases challenging the Biden administration's censorship efforts unleash new threats to Americans' ability to speak and be heard freely online and make legal remedies virtually impossible ahead of the 2024 election.

Last Independence Day, U.S. District Judge Terry A. Doughty issued the first injunction barring various government agencies from contacting social media companies to suppress speech, calling the government's actions “Orwellian.” But a year later, a more limited injunction from the Fifth Circuit was lifted by the Supreme Court in Murthy v. Missouri, leaving agencies free to use the same tactics again.

“This is essentially a road map for government officials, not just the federal government, but state and local government officials, to go after social media companies and pressure them to censor speech they don't like,” Eric Sell, general counsel at the Center for American Liberty, told DCNF.

The Supreme Court ruled that the plaintiffs in the case, which included two states and five individuals, did not have the right to seek an injunction against the government.

The majority of her opinionJustice Amy Coney Barrett said the plaintiffs had “failed to link past social media regulation to the defendants' interactions with the platforms,” ​​and noted that the platforms have “their own incentives to moderate content,” making it difficult for them to show that the government's solicitations directly harmed them.

In his dissent, Justice Samuel Alito said that while the Court's decision did not address the essence of the issue, it worried that it sent a message that government coercive campaigns against certain speech could go unchecked “if implemented sufficiently skillfully.”

Justice Alito wrote that the Court “recognizes that the success of the enforcement campaign in this case provides an attractive model for future officials wishing to control what the public says, hears, and thinks.”

John Vecchione, senior litigation counsel at the New Civil Liberties Union, which represents some of the plaintiffs in Murthy v. Missouri, told DCNF that the majority's decision gives government officials “tremendous leeway” to exert pressure on companies behind the scenes. (RELATED: 'Clearly Unconstitutional': Justice Alito Issues Fierce Dissent in Biden Administration Censorship Case)

Agencies including the FBI and the Cybersecurity and Infrastructure Security Agency (CISA) have already resumed communications with social media platforms after several justices expressed sympathy for the government's position during oral arguments in March. Report Shown at that time.

White House Press Secretary Karine Jean-Pierre Said in statement Responding to the ruling, the Supreme Court said its decision “will help ensure the Biden Administration can continue its important work working with technology companies to protect the safety and security of the American people.”

“If a court requires very strong evidence of causation and an 'ongoing' campaign in order to obtain standing, government agencies can use that procedural requirement to evade judicial scrutiny for even the broadest, most indirect forms of censorship,” said Ilya Somin, a law professor at George Mason University. I have written “The problem is likely to be exacerbated as government agencies attempt to understand the current rules around it and use threatening communications to exploit companies,” Reason magazine reported last week.

Without an injunction, there's nothing to stop the government from doing the same things in the 2024 election that prompted platforms to restrict content in 2020. As documents uncovered during the litigation made clear, officials urged the companies to censor speech not just about COVID-19 but also about the election.

In 2020, CISA announcedSwitchboard operatorThe initiative allows state and local election officials to report “misinformation” posts for the elections department and share them on social media platforms.

State authorities are taking similar steps.

Sell ​​represents conservative political commentator Logan O'Handley, who filed suit alleging that Twitter censored and then suspended his account after it received a warning from the California Office of Election Cybersecurity over posts related to the 2020 election. rejection His case is scheduled to be heard on Monday.

As the case, Murthy v. Missouri, returns to district court, Vecchione said he will seek further evidence of government coercion through discovery.

“The Supreme Court demands a very high standard, and if the government pursues that standard, it must be unashamed and on full display,” Vecchione said.

Among the plaintiffs was suggested After the ruling, Congress stepped in.

Jill Hines, co-executive director of Health Freedom Louisiana, said Congress “should act immediately to defund the agencies and third parties actively involved in this widespread and unconstitutional censorship scheme.” Jayanta Bhattacharya, a professor at Stanford University's School of Medicine, similarly said concrete action was needed to “restore the right to free speech as a central pillar of America's civil religion.”

Robert Corn Revere, Chief Counsel, Foundation for Individual Rights and Expression Had made It similarly calls on Congress to “take action.”

“Despite extensive evidence of government pressure, the Court today ruled that these plaintiffs lack standing to litigate,” he said. “FIRE is concerned about what this means for future First Amendment plaintiffs. But the majority also notes that, if proven, the Court has the authority to block government attempts to pressure social media platforms, which is important.”

Philip Hamburger, CEO of NCLA, said: column The ruling on Tuesday made the First Amendment “effectively unenforceable against large-scale government censorship.”

“This decision is likely to be the worst speech decision in the history of the Supreme Court,” he said.

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