Using a Legal Technicality, the Supreme Court Rules Against Free Speech

Kennedy Predicted This Outcome

By Adam Garrie, The Kennedy Beacon

Last week’s Supreme Court decision in the historic Murthy v. Missouri case vindicates the legal position of independent presidential candidate Robert F. Kennedy Jr. 

The case represents a historic moment in the battle to restore free speech to the digital public square. Should Big Tech companies, in collusion with the government, be allowed to censor content at their discretion? Kennedy and others have said ‘no.’

Initially filed as Missouri v. Biden in 2022, the attorneys generals of Missouri and Louisiana accused the BIden administration and Federal agencies answering to the White House of violating the First Amendment by coercing social media companies into censoring the protected speech of the American public. After achieving victories in a District Court and in the US 5th Circuit Court of Appeals, the case went to the Supreme Court under the name Murthy v. Missouri. 

In a 6-3 opinion, the court found that the plaintiffs, Missouri and Louisiana, did not have legal standing. This means that the plaintiffs could not prove that they were directly injured (aka wronged) by the Biden administration’s coercion of social media companies into the censorship of speech protected by the First Amendment.

Last year, Kennedy warned that the issue of standing could derail this vitally important case, as reported in The Kennedy Beacon. This is why Kennedy asked the court for “leave to intervene,” a motion that would have allowed him to formally join the case as someone who could easily prove direct injury as a result of the Biden administration’s orders to censor Kennedy’s social media posts. 

Commenting on the court’s decision to effectively ignore the merits of the case and focus on the singular technicality of standing, Kennedy said,

The Supreme Court got it wrong – and has failed to uphold its responsibility to the Constitution by finding no standing in Murthy v. Missouri. My case of Kennedy v. Biden will proceed in the trial court where there is no question that Children’s Health Defense and I have standing. Justice Alito’s dissent outlines the correct analysis, finding standing and First Amendment violations on the merits. I will continue to fight for free speech in the courts and on the campaign trail.

Kennedy brought separate litigation against the Biden administration for allegedly violating the First Amendment by directly coercing social media companies into censoring his protected speech and that of his co-defendant, the nonprofit group Children’s Health Defense. 

The Murthy decision will not directly impact the trajectory of this case due to the fact that the Supreme Court’s opinion was based on a technicality rather than on the merits of the phenomenon of political censorship. 

Because the Biden administration moved to censor Kennedy’s social media presence within the first 48 hours after President Biden’s inauguration, as reported in The Kennedy Beacon, it would have been much simpler to establish Kennedy as a plaintiff with standing than it was to establish whether or not Missouri and Louisiana had standing. 

In December of 2023, the Supreme Court rejected Kennedy’s motion to join Murthy v. Missouri, thus setting the stage for the vital matter of free speech to be discarded by the Supreme Court due to a technicality. With this in mind, Kennedy’s separate lawsuit against Biden may stand a stronger chance of securing a precedent-setting ruling in favor of free speech. 

According to the court’s majority opinion authored by Justice Amy Coney Barrett, 

The plaintiffs fail, by and large, to link their past social-media restrictions and the defendants’ communications with the platforms. The state plaintiffs, Louisiana and Missouri, refer only to action taken by Facebook against a Louisiana state representative’s post about children and the COVID-19 vaccine. But they never say when Facebook took action against the official’s post – a critical fact in establishing a causal link.

A dissenting opinion written by Justice Alito and joined by Justices Thomas and Gorsuch determined that the plaintiffs had standing and that the Biden administration’s censorship was unconstitutional. According to Alito, social media platforms are vulnerable to bullying by federal authorities due to Section 230 of the Communications Decency Act of 1996, shielding companies from the liability associated with publishers. If federal officials took steps to change this, the current social media business model would be terminated. 

The dissenting opinion further states that the federal government is in a position to pursue social media companies with domestic antitrust laws or else fail to defend US social media companies from often excessive regulations imposed by foreign entities, including the European Union. Alito and his fellow dissenting justices paint a picture of social media companies that were systematically subjected to direct pressure from the White House, to which they submitted, to censor content that the administration found objectionable. Had they not capitulated to the administration’s demands for censorship, the justices imply, the social media companies could reasonably have expected to pay a large financial price in both the short and long term. 

In his dissenting opinion, Alito appeared to criticize fellow justices for reducing the epoch-making issue of free speech to a technicality. According to Alito, “high-ranking government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.” 

Had the issue of standing been resolved by allowing Kennedy to join the lawsuit, other justices might have taken a similar view of the matter of the case on its merits. It is worth noting that the Supreme Court’s ruling covers a preliminary injunction which means that it is still theoretically possible that the Murthy case could be reviewed at a later date on its core merits. 

While the attorneys general of Missouri and Louisiana led a valiant effort to restore free speech to our digital public squares, Kennedy’s dire prediction that the issue of standing could ruin the chances of securing a permanent victory proved to be all too true.