Today, the U.S. Supreme Court voted 6-3 to vacate a historic
preliminary injunction granted by the U.S. Court of Appeals for the
Fifth Circuit in the case of Murthy v. Missouri, finding that the
Respondents protected by the injunction lacked standing to support
injunctive (that is, future) relief. The injunction had barred
officials from the White House, CDC, FBI, Cybersecurity and
Infrastructure Security Agency (CISA), and the Surgeon General’s
office from encouraging social media platforms to censor
constitutionally protected speech. Representing Drs. Jayanta
Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill
Hines, the New Civil Liberties Alliance is disappointed by this
dramatic shrinking of Americans’ First Amendment rights. The Court
today protected the government’s ability to censor truthful speech
that opposed the government’s false and manipulative narratives on
multiple aspects of the Covid-19 pandemic, including our clients’
true statements challenging government falsehoods about natural
immunity, vaccine efficacy, masking, the origins of the Wuhan
virus, and many other topics.
In September, a Fifth Circuit
panel upheld the key components of U.S. District Judge Terry
Doughty’s July 4 preliminary injunction order, prohibiting named
federal officials from coercing or significantly encouraging social
media companies to suppress legal speech. The Supreme Court’s
decision overturns that ruling, leaving NCLA’s clients without
redress, even though they have been blacklisted, shadow-banned,
de-boosted, throttled, and suspended on social media as part of a
government-orchestrated censorship campaign orchestrated by the
White House, CDC, FBI, CISA, and Surgeon General in a “whole of
government” effort.
The “censorship industrial complex” has
successfully suppressed truthful perspectives contradicting other
government-approved narratives, too. The vast, coordinated
silencing of First Amendment-protected speech has targeted
influential, highly qualified voices including doctors and
scientists like Drs. Bhattacharya, Kulldorff and Kheriaty, as well
as those like Ms. Hines who lobby officials.
“If the lower courts’ assessment of the
voluminous record is correct, this is one of the most important
free speech cases to reach this Court in years,” Justice Alito
wrote in the dissenting opinion, joined by Justices Thomas and
Gorsuch. “Freedom of speech serves many valuable purposes, but its
most important role is protection of speech that is essential to
democratic self-government, and speech that advances humanity’s
store of knowledge, thought, and expression in fields such as
science, medicine, history, the social sciences, philosophy, and
the arts.”
The Supreme Court majority has practically
erased the First Amendment and permitted government to co-opt
private entities, like social media platforms, to accomplish its
censorship aims. The Framers recognized that the cure for
problematic speech is more speech. Nothing prevents government from
using its own speech to explain why “misinformation” is wrong. The
Court’s ruling will make it far easier for the government to censor
speech it doesn’t like and far harder for affected interests to
oppose that censorship, which is anathema to the Constitution. This
decision enabling the censorship industrial complex will have grave
consequences for years to come. Missouri v. Murthy will now return
to the lower courts for further proceedings.NCLA released the
following statements:
“The majority of the Supreme Court has declared
open season on Americans’ free speech rights on the internet. They
have issued an ukase that the Federal Government, which admittedly
had a huge apparatus aimed at getting the social media companies to
remove speech like our clients’. The government’s actions caused
the social media companies to remove such messages whether they
violated the platforms’ policies or not. The Supreme Court, which
is not a factfinder in these cases, just determined against all
evidence that the Federal Government will not be held accountable
for the natural consequences of its speech-squelching actions. The
Government can press third parties to silence you, but the Supreme
Court will not find you have standing to complain about it absent
them referring to you by name apparently. This is a bad day for the
First Amendment.”
— John Vecchione, Senior Litigation Counsel,
NCLA
“The Court has green lighted the government’s
unprecedented censorship regime, which resulted in the censorship
of top scientists like our clients on the areas of their expertise.
This decision is a travesty for the First Amendment, for Americans’
rights to free speech, and for the pursuit of scientific and other
knowledge. America can no longer claim to safeguard citizens’ free
speech rights.”— Jenin Younes, Litigation Counsel, NCLA
“In the guise of countering misinformation, the
Biden Administration used its regulatory power to suppress valid
criticism of its COVID response. This led to irrational policies,
such as extended school disruptions, the anti-science denial of
recovered immunity, counterproductive vaccine mandates, and the
sidelining and gaslighting of the vaccine-injured. Free speech is
essential to science, to public health, and to good health. In
light of the Supreme Court’s reluctance to fully protect free
speech today, we will need concrete action by Congress, and a
popular movement, to restore free speech rights as a central plank
of the American civic religion.”— Dr. Jayanta Bhattacharya, NCLA
Client, Professor at the Stanford University School of Medicine in
the Department of Health Policy
“I am profoundly disappointed that the Supreme
Court failed in this decision to uphold American citizens’ First
Amendment rights to free speech. The ruling suggests the Justices
failed to grasp the nature and operations of the government’s
current censorship apparatus, which seeks to control the flow of
information online and silence those who challenge the government’s
preferred policies. As our case proceeds, we will continue to
uncover additional evidence regarding the government’s vast
censorship enterprise, and trust that the Court will do the right
thing when it comes to a final ruling in the case.” — Dr.
Aaron Kheriaty, NCLA Client, Fellow and Director, Bioethics and
American Democracy Program, Ethics and Public Policy Center
“The court’s decision today fails to acknowledge
the government’s significant and unconstitutional role in
coercively censoring American speech on social media, betraying me
and countless other concerned citizens who refuse to be silenced. I
am immensely disappointed in the Justices’ refusal to affirm the
lower court’s decision to put the injunction in place as a barrier
to prevent further calculated efforts by the government to stifle
disfavored speech like mine. After reviewing the shocking and
incriminating evidence indicating a massive government censorship
scheme, the Justices erroneously determined to allow the government
access to social media companies for the purpose of undermining
free speech. Congress must act immediately to defund agencies and
third parties actively involved in this broadly pervasive and
unconstitutional censorship scheme.”— Jill Hines, NCLA
Client, Co-Director, Health Freedom Louisiana
For more information visit the case
page here or
watch the case
video here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights
group founded by prominent legal scholar Philip Hamburger to
protect constitutional freedoms from violations by the
Administrative State. NCLA’s public-interest litigation and other
pro bono advocacy strive to tame the unlawful power of state and
federal agencies and to foster a new civil liberties movement that
will help restore Americans’ fundamental rights.
Ruslan Moldovanov
New Civil Liberties Alliance
202-869-5237
ruslan.moldovanov@ncla.legal