The Volokh Conspiracy

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Two Excellent Opinions in Murthy v. Missouri

Justice Barrett's majority opinion reaches the right outcome; Justice Alito's dissent publicizes the atrocious mistreatment of Facebook by the Biden Administration during Covid.


I agree with Will Baude's and Jonathan Adler's posts earlier today that Justice Barrett's excellent majority opinion throwing out the plaintiff's case for lack of standing reaches the right outcome. The plaintiff's had to prove an actual injury, not one that was hypothetical or speculative, that the Court could redress by an injunction targeted against the Biden Administration in the future. The fact that the Biden Administration threatened Facebook with an antitrust suit to force it to delete, among others, Robert F. Kennedy's posts about vaccine skepticism, during Covid, does not mean that the Biden Administration will behave this way in the future. We simply do not know, today, if there will be either a Covid-like event or a Biden Administration, in the future, i.e. after January 20, 2025. Justice Scalia would have joined Justice Barrett's opinion if he was alive and on the Supreme Court today.

At the same time, Justice Alito's excellent dissent usefully summarizes a sustained campaign of brutal and vicious threats made by the Biden Administration against Facebook during Covid from 2021 to 2022. Biden threatened to breakup Facebook with an antitrust suit if it did not greatly censor vaccine skeptic speech. Facebook meekly complied because they had bigger fish to fry. This was a clear violation of the First Amendment by the Biden Administration. It was a gross misuse of presidential power that, at the time, was a High Crime or Misdemeanor. The plaintiffs in this case might have standing to sue the various government officials mentioned in their complaints for money damages, but they do not have standing to sue for a prospective injunction.

The remedy for the future behavior of Joe Biden is in the hands of American voters to be decided on November 5th of this year. It is not the Supreme Court's job to conduct a general prospective oversight of the executive branch.