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.

Comments

[Noscitur a sociis]

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.

Let me make it crystal clear that I will vote for any Republican and for any law-abiding Democrat, including certainly Joe Biden, in 2024, if Trump is the Republican nominee for president.

[Kazinski]

Well maybe Calabresi has come to the same realization that a plurality of swing state voters have:

That Biden is a bigger threat to democracy than Trump is.

https://www.washingtonpost.com/politics/2024/06/26/biden-trump-swing-state-poll-democracy

In six swing states that Biden narrowly won in 2020, a little more than half of voters classified as likely to decide the presidential election say threats to democracy are extremely important to their vote for president, according to a poll by The Washington Post and the Schar School of Policy and Government at George Mason University.

Yet, more of them trust Trump to handle those threats than Biden. And most believe that the guardrails in place to protect democracy would hold even if a dictator tried to take over the country."

[Noscitur a sociis]

I’m not saying that Prof. Calabresi is estopped from supporting Trump or anything. But he should probably acknowledge that this is a change and maybe explain what happened!

[loki13]

Well, I would assume that Calabresi knew that Trump was a terrible thing for America in general, the conservative movement more specifically, and the GOP quite specifically.

But then he realized this year that Trump is now the GOP, and to the extent Calabresi want to continue to be associated with the GOP, he needs to kiss the ring.

That's my assumption.

[nicmart]

"Justice Scalia would have joined Justice Barrett's opinion if he was alive and on the Supreme Court today."

Which would be meaningful if Scalia were Jesus and SCOTUS the Catholic Church.

[Dan Schiavetta]

If the Biden Administration had had its way, thousand of American lives would have been saved.

[Dr. Ed 2]

Bullshyte!

Danish scientists proved the vaccine had negative effect over time -- vaccinated people MORE likely to get Covid.

[David Nieporent]

I don't know why, but the fact that he keeps misspelling bullshit bothers me far more than the fact that he just completely makes up everything he posts. (As in the above comment.)

[damikesc]

By silencing accurate information and publicizing untrue information?

Can you back up this claim of yours at all?

[momo]

Oh it "publicizes" it does it?

Well that is OK then.

We can just give the green light to government censorship as long as we publicize it in a paper that only lawyers and law students read.

because the MSM is saying the SCOTUS gave their seal of approval to the censorship.

Which do you think is more "publicized"?

[damikesc]

Do not get why government possibly stomping on explicit Constitutional rights should be treated differently and standing should be assumed. If the government says "You can no longer freely speak", it'd be nigh impossible to claim SPECIFIC harm to you personally.

[Dr. Ed 2]

Don't complain when Trump 47 uses this precedent to silence the media in general.

[Brett Bellmore]

He can't. The media were cooperating, being forced to do what they weren't averse to doing anyway. They won't be nearly as cooperative with him.

[Brett Bellmore]

"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. "

Sarcasm?

[Estragon]

As someone much smarter than me pointed out yesterday— Alito’s dissent got me thinking about that time Fox News called… and then uncalled Arizona after some nasty calls from the White House. Isn’t that a better example of what Alito was talking about? See generally the discovery in the Dominion lawsuit…

[Ed Grinberg]

.

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.

Like I said:
https://reason.com/volokh/2024/06/24/monday-open-thread-59/?comments=true#comment-10614031

[Squirrelloid]

No standing? Speculative?

The government will continue to browbeat social media companies until the courts tell them to stop. The decision is a travesty that ensures the continued violation of Americans' first amendment rights.

The right decision would be to recognize government attempts to compel company behavior and speech, especially to suppress speech the government disfavors, is a violation of the first amendment, and to prohibit it from engaging in such communications.

Does anyone seriously think the government isn't engaging in similar behavior right now, just targeting different victims? And won't be doing so a year from now, and five years from now? File this under 'likely to be repeated and evading review'.