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Free Speech Fight Will Go On After Supreme Court’s Devastating Ruling

Protester holds sign criticizing big government.
Image Credit CBS News / Youtube 

Attorney for plaintiffs in Murthy v. Missouri says expanded discovery could catch government colluding with Big Tech to silence speech.


Free speech may have taken a beating in the U.S. Supreme Court’s ruling giving Big Government and Big Tech free rein over the First Amendment, but an attorney for the private plaintiffs in the case says the battle is far from over. 

“We are not giving up. … We are pursuing it on the merits … in the district court, and we want to get more discovery,” Jenin Younes, litigation counsel for the New Civil Liberties Alliance tells me in the latest edition of “The Federalist Radio Hour” podcast.   

NCLA represents the private plaintiffs in the ruling that saw a 6-3 majority in Murthy v. Missouri reverse a lower court’s injunction that blocked the federal government from partnering with social media giants to silence posts it doesn’t like. As my colleague Shawn Fleetwood wrote, the decision — based on an absurd standing argument — effectively frees the Biden administration to continue its censoring operations during the 2024 election. 

“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,” NCLA said in a press release following the ruling. 

In the majority opinion, Justice Amy Coney Barrett wrote that the plaintiffs failed to establish standing because they did not “demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.”

“Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction,” the decision opines. 

‘Truth Can Get You Fired’

But if the past is truly an indicator of the future, it’s difficult to reconcile the standing argument with the speech suppression that occurred, particularly against those who rightly questioned the government’s Covid policies and voiced legitimate concerns over Covid vaccines. 

NCLA’s clients, Drs. Jayanta Bhattacharya, Martin Kulldorff, Aaron Kheriaty, and Jill Hines, were all censored for daring to challenge the government’s “disinformation” campaign on the pandemic. It cost Kulldorff his job as a respected professor at Harvard. 

“I am no longer a professor of medicine at Harvard. The Harvard motto is Veritas, Latin for truth. But, as I discovered, truth can get you fired. This is my story — a story of a Harvard biostatistician and infectious-disease epidemiologist, clinging to the truth as the world lost its way during the Covid pandemic,” he wrote earlier this year in a column for City Journal. Kulldorff had questioned the lockdowns and vaccine mandates. 

‘Factual Errors’

No one was hurt by the government? The majority opinion asserts that while the Big Tech speech suppressors did have content moderation policies and may have been censoring users, the plaintiffs provided no documentation showing the government coerced the social media giants to do so. 

As censor-in-chief Joe Biden would say, that’s malarkey. 

Younes said the ruling is rooted in some “factual errors” by the majority. The Louisiana District Court Judge who on July 4, 2023, issued the injunction against the government said the executive branch “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’” U.S. District Judge Terry Doughty conducted a thorough review of voluminous records showing dozens of agencies communicating with Big Tech companies, according to Younes.

“[There were] probably close to 100 federal officials that we know of who were colluding with, coercing, pressuring, influencing the companies to effectuate their censorship desires,” the attorney said, adding that the justices in the majority appear to have “read the government’s brief and just believed everything they said.” 

In his dissent, Justice Samuel Alito warned that the government’s conduct was “blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.” 

“Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”

Difficult but Not Impossible 

While the high court remanded the case to the lower court “for further proceedings consistent with this opinion,” Younes said expanded discovery might just stop the overreaching government yet. NCLA plans to go after government and Big Tech communications involving its clients to show the direct harm caused, as demanded in the majority’s standing argument. 

“The district court has shown that it believes in our case and … said this is arguably the most massive attack on free speech in the history of the United States, which I agree with,” Younes said. “The federal government was censoring entire narratives, entire lines of thought. If you questioned the efficacy of the vaccines in 2021, even if you were a vaccine expert like our client, Martin Kulldorff, you would be censored on social media, as he was.”

The case may also get an assist from a presidential candidate. Robert F. Kennedy Jr., now running as an independent, had sought to intervene in the Supreme Court case but was turned back by the majority. If anyone knows censorship, it’s RFK Jr., who was blocked from social media as part of what the government and corporate media have described as the “Disinformation Dozen” for challenging the government’s faulty narrative on Covid vaccines. 

Kennedy has lots of emails showing the Biden administration trying to silence his speech. 

As government water carrier USA Today reported, one email shows the Biden administration pouncing after Kennedy suggested baseball legend Hank Aaron’s death may have been caused by his Covid-19 vaccine. 

“Wanted to flag the below tweet and am wondering if we can get moving on the process for having it removed ASAP,” the digital director for the White House’s Covid response team wrote in an email to an official at Twitter, the publication reported. 

Alito also dissented in the court’s rejection of Kennedy’s motion to join the lawsuit, suggesting standing could be a problem and RFK Jr. could help take away that argument. 

“[The Supreme Court is] making it very difficult to bring the case, but they’re not making it impossible,” Younes said.

If the Supreme Court won’t stand up to assaults on the First Amendment, Congress must, said plaintiff Jill Hines, NCLA client and co-director of Health Freedom Louisiana.

“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,” she said in the press release. “Congress must act immediately to defund agencies and third parties actively involved in this broadly pervasive and unconstitutional censorship scheme.”

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