On July 4, 2023, Louisiana-based federal Judge Terry Doughty issued a historic decision in the censorship case then called Missouri v. Biden (the case was filed by two state attorneys general, including Missouri Attorney General Eric Schmitt, who now sits in the U.S. Senate). The decisions made news not just for the result and the date it was issued, but for the importance Doughty showed to the underlying issue.
In fact, Doughty’s opinion echoed the lofty rhetoric of the great federal court decisions issued during the civil rights era. But the political dynamic had flipped. Instead of liberal federal judges siding with the federal government to strike down prejudiced state and local laws, as in the ’50s and ’60s, here we had a conservative judge siding with local officials and private citizens against a federal bureaucracy run by the Democrat Party.
That dynamic continues to cause confusion as Missouri v. Biden (now called Murthy v. Missouri) reaches the U.S. Supreme Court, which will hear arguments in the case on Monday. I have seen it firsthand in similar cases, like the “state action” case I am litigating for presidential candidate Robert F. Kennedy Jr., against Google in California. It makes this argument one of the most interesting in Supreme Court history. It will hinge on three critical questions.
Finding a Free Speech Majority
First, can the Murthy plaintiffs cobble together a “free speech” majority that upholds the liberal values underlying the state-action doctrine? Many people would assume the majority would follow a 6-3 or 5-4 split, such as we saw in the Dobbs decision. They would be wrong, since Chief Justice John Roberts and Brett Kavanaugh, two parts of the Dobbs majority, have shown they favor corporate and government power over individual freedom.
Kavanaugh made that clear in the 2019 case Manhattan Community Access Corporation v. Halleck, the Supreme Court’s most recent state-action decision. In that case, the producers of a cable television show sued a nonprofit corporation that operated one of Time Warner’s public access channels in New York City for violating their First Amendment rights when the nonprofit suspended them after airing one of their programs (a show that focused on living conditions in East Harlem).
Writing for a 5-4 majority, Kavanaugh’s opinion compared the nonprofit’s operation of the public access channels to a government license:
Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court’s many state-action cases amply demonstrate, that is not the law.
True, but that overlooked the special speech-carrying function the nonprofit served, plus the fact that it had generally opened its stations to all viewpoints. That was where the dissenters, led by Justice Sonia Sotomayor, pounced, correctly explaining that “[t]he right to convey expressive content using someone else’s physical infrastructure is not new.” Thus, while the nonprofit and Time Warner may have owned and operated their own infrastructure, that was not dispositive. Their speech-carrying function demanded a higher level of analysis.
Murthy presents a similar question. Social media companies want us to believe they are private entities that can pick and choose what content their users see, just like the nonprofit in Halleck could decide which programs to air. For its part, the federal government wants us to believe it is a mere advocate while social media companies decide, for themselves, what content to carry and what content to ban. It is easy to see how that logic appeals to free-market conservatives like Kavanaugh and Roberts, who kept emphasizing the companies’ private status during the recent arguments in the NetChoice cases.
If Halleck is a guide, Roberts and Kavanaugh will likely side with the tech companies and the government. The three Democratic appointees should err on the side of free speech, as they did in Halleck, although like Covid-19 the censorship issue has become so politicized—with President Biden, for example, accusing Covid dissidents of “killing people”—they may not.
Indeed, there may be only one way for the Murthy plaintiffs to win at the Supreme Court: invoke Halleck and remind the three Democrats of traditional liberal values. Remind them that the state action doctrine flourished during the Warren Court and in response to liberal justices like Douglas, Brennan, and Marshall, who understood the changing world and knew the Court’s jurisprudence had to adapt to it.
Those three justices, combined with Samuel Alito and Neil Gorsuch, who have shown a refreshing interest in free speech from the conservative side of the political spectrum—Alito was the only one who believed my client, RFK Jr., should be allowed to intervene in Murthy—could provide the majority. They could be joined by Clarence Thomas, who has called for courts to rethink the legal doctrines that govern tech companies.
Alito, Gorsuch, Thomas, Sotomayor, Kagan, Jackson. Now that would be a strange majority.
The Editorial Control Argument
Second, can somebody rebut the argument that tech companies are simply exercising editorial judgment when they censor certain viewpoints on their platforms, even when they rely on government standards to do so?
This is one of the most troubling aspects of these cases. After all, as the Fifth Circuit Court of Appeals said in its portion of the NetChoice cases, “Unlike newspapers,” internet platforms like YouTube “exercise virtually no editorial control or judgment.” They use “algorithms to screen out certain obscene and spam-related content. And then virtually everything else is just posted to the Platform with zero editorial control or judgment.”
Nobody believes social media companies exercise editorial control — and assume editorial responsibility — for their content. They did not do that before. They do not do it now. And that is not why these cases were filed. They were filed because tech companies took the federal government’s cue and removed speech on matters of public concern that had caused people to distrust the government. Essentially, they removed dissent.
The lawyers did not emphasize that point in the NetChoice arguments. And they allowed industry lawyer Paul Clement — a pillar of the D.C. establishment and thus an ally of fellow “swamp” conservatives Roberts and Kavanaugh — to say that all his clients want to eliminate from their platforms is “bad stuff” like terrorist videos and material that is damaging to children.
That should be the focus of the Murthy argument. After all, sitting in the courtroom will be prominent dissidents like Jay Bhattacharya, the Stanford professor of medicine who helped draft the Great Barrington Declaration. Is Bhattacharya’s opposition to draconian Covid policies — which was widely censored during the early stages of the coronavirus panic — part of the “bad stuff” that Clement referred to in the NetChoice arguments? What about the New York Post’s reporting on Hunter Biden’s laptop? Where does the “bad stuff” begin and end?
Some would say with truth. The tech companies only want to remove “misinformation” from their platforms. But that’s not true. Just ask Kavanaugh. Christine Blasey Ford accused him of sexual assault. Kavanaugh denied the allegations, so I assume he believes they constitute “misinformation.” But nobody has ever been censored for discussing those allegations. One can find Blasey Ford’s allegations — and interviews with her about them from anti-Kavanaugh reporters like Rachel Maddow — all over the web.
That’s the problem with trying to police truth. And that’s why the First Amendment has never depended on truth. As First Amendment scholar Alexander Bickel wrote: “The social interest that the First Amendment vindicates is … the interest in the successful operation of the political process, so that the country may be better able to adopt the course of action that conforms to the wishes of the greatest number, whether or not it is wise or is founded in truth.”
Bickel, of course, was a conservative. But he recognized that conservatism could not prosper without free speech. So when it came to protecting speech, Bickel was as liberal as could be. Clement, Roberts, and Kavanaugh should heed his example.
The Town Square
Finally, many people have called the internet, and social media websites in particular, the new “town square.” It is where people go to discuss the issues of the day. In fact, according to one report, the average American now spends nearly seven hours online daily, including roughly two and a half hours on social media platforms and another two and a half hours streaming videos. Cyberspace is where people meet, shop, and work. It is where they discuss politics and the other issues of the day. Therefore, controlling what people hear in cyberspace has a major effect on what people think and, relatedly, how they vote.
The censoring of the Post’s Hunter Biden laptop story provides one of the best examples. According to some polls, a substantial number of Biden voters would have changed their vote had they known the truth about the laptop, including its evidence of Biden family influence peddling. Even if that figure is high, the censoring of the Post story — enabled, of course, by the infamous intelligence letter that falsely suggested the laptop was Russian disinformation — allowed Joe Biden to avoid answering corruption questions during the 2020 debates. It’s easy to imagine enough Biden voters in a few key states switching their votes in a way that could have changed the outcome of the 2020 election, especially since Biden had made Trump’s dishonesty a centerpiece of his campaign.
That is why tech censorship matters. We don’t know what will happen in an election unless people know everything they can about the candidates. We can’t make policy decisions about the issues of the day — whether crime, homelessness, Covid-19, or anything else — without an informed populace. And since cyberspace is the place where people get their information, it should have the broadest protection for free speech.
That may be uncomfortable for private market conservatives like Roberts and Kavanaugh, but it is consistent with prior Supreme Court law and the liberal philosophy on which America was built. After all, no government deemed the town square to be the place for people to gather and discuss political issues, just as no government deemed free speech to be a fundamental human right. They simply evolved that way.
It is time for the Supreme Court to recognize that. It can start on Monday.
