Even the Supreme Court’s Conservatives Are Fed Up With the Garbage Coming Out of the 5th Circuit

What happens when a lawless judge and a terrible appeals court embrace the dopiest First Amendment claim you’ve ever heard out of pure spite toward a Democratic president? That would be Murthy v. Missouri, a brain-meltingly dumb case that the Supreme Court was unfortunate enough to hear oral arguments in on Monday. Murthy poses a question so asinine that to ask it is to answer it: Can government officials encourage social media companies to moderate certain content that they deem harmful—most importantly, disinformation about COVID-19 in the middle of the pandemic?

Yes, of course they can: The First Amendment does not gag public officials from urging Facebook or the Washington Post or anyone else to publish or not publish certain information, especially when it contains dangerous lies about a once-in-a-century pandemic that could exacerbate the crisis. The First Amendment bars government censorship, not government persuasion, and the Biden administration planted itself on the latter side of that bright line. At least six justices grasped this basic constitutional principle on Monday. Several of them used arguments to highlight how this inane case illustrates so much of what’s wrong with the judiciary today, and hinted at the dangers it could pose to American democracy in the future. That we should pay attention to. The rest was an unfortunate sideshow.

Like so many Supreme Court cases these days, Murthy is built atop a heap of fake facts. The case began when Missouri and Louisiana sued agencies and officials across the Biden administration, falsely accusing them of coercing social media companies into censoring their residents’ free speech. (These states later added a handful of fringe anti-vaxxers to the suit.) They filed their complaint in the Monroe Division of the Western District of Louisiana, where—surprise!—they were guaranteed to draw a Trump appointee, Terry Doughty, the one judge hearing cases in that division. Judge Doughty has a record of issuing nationwide injunctions against the Biden administration on the basis of dubious legal and factual analysis. Most notably, he issued a nationwide bar against Biden’s vaccine mandate for health care workers in an opinion riddled with anti-vax nonsense (which the Supreme Court reversed).

Doughty, in other words, was certain to rule against Biden in the social media case. Even still, the opinion he handed down on July 4, 2023, was a humiliating mess of contradictions, fabrications, and (ironically) misinformation. Doughty adopted the plaintiffs’ theory that the administration “coerced” social media companies into removing “conservative” speech about COVID, including posts promoting hydroxychloroquine and rejecting the efficacy of vaccines. He accused government officials of launching a “coordinated campaign” to silence conservatives by forcing private companies to take down anti-vax content, as well as false claims about election fraud. And he issued one of the most sweeping injunctions in the history of the American legal system, prohibiting any employee—including Homeland Security, the State Department, the Department of Justice, and the FBI—from “engaging in any communication of any kind with social-media companies” encouraging content moderation.

Doughty, it turns out, grievously butchered the record to reach his conclusion. An exhaustive analysis by Mike Masnick proves that Doughty consistently misrepresented testimony and other evidence in the record to construct a conspiracy theory with zero basis in reality. He distorted emails and other exchanges to make them look coercive when they were nothing of the sort, cherry-picking and rearranging quotations to put them in a censorious light. Yet the hard-right U.S. Court of Appeals for the 5^th Circuit, where law goes to die, affirmed Doughty’s conclusions and upheld much of his injunction (while narrowing it in part). That move sent the administration racing to the Supreme Court for an emergency stay, which it granted in October, over the dissents of Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. Monday’s arguments confirmed that a majority is prepared to side with Biden on the merits.

The justices did not sound happy to have the case before them. Justice Sonia Sotomayor scolded Louisiana Solicitor General Benjamin Aguiñaga (a former Alito clerk) for his lack of candor. “I have such a problem with your brief,” she told him. “You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to.” Aguiñaga was unable to defend Doughty’s more extreme deceptions. So he had to fall back on what Justice Elena Kagan called an “extremely expansive” argument: the notion that “encouraging people to suppress their own speech” violates the First Amendment, even if it isn’t coercive. Kagan drew upon her past work in the executive branch to explain that, actually, government officials do this all the time. “I’ve had some experience encouraging press to suppress their own speech,” Kagan told Aguiñaga. Example: “You just wrote a bad editorial. Here are the five reasons you shouldn’t write another one.” Is that really unconstitutional?

Justice Brett Kavanaugh, a former White House staff secretary, also provided a real-world perspective after Alito fumed that officials had been too mean to the platforms and would never treat the traditional press so sharply. Kavanaugh gave Alito a reality check: “I’d assumed, thought, [and] experienced government press people throughout the federal government who regularly call up the media and berate them,” he told Deputy Solicitor General Brian Fletcher, who defended the administration. “You said the anger was unusual. I wasn’t entirely clear on that from my own experience.” Translation: Government employees yell at members of the media all the time. The media can accept or reject their requests. That is how it works.

But did Biden officials berate social media employees? Only on a few rare occasions. Here’s what really happened: The platforms in question, most prominently Facebook and Twitter, invited the government to help them identify and remove the most toxic disinformation. At the time, as Fletcher explained, these companies were eager to present themselves as “partners” with the administration in its push for COVID vaccination. Officials could “flag” questionable content, but the platforms made their own judgment calls, without any demonstrable fear of retaliation. Everyone agrees that the government violates free speech when it explicitly coerces companies into censoring expression under the threat of punishment. But, Fletcher persuasively argued, no such thing happened here.

That left Aguiñaga to lean on the theory that the government contravenes the First Amendment when it merely “encourages” specific content moderation. Justice Amy Coney Barrett, a stickler for legible rules, sounded borderline aghast at this baggy, boundless standard; she lobbed a series of hypotheticals at Aguiñaga that showed he was pushing a meaningless and impracticable test. Chief Justice John Roberts tried to help Aguiñaga understand that multiple agencies with competing agendas may pressure platforms in contradictory directions; doesn’t that “dilute the concept of coercion significantly?” (Aguiñaga just sounded confused.) Kavanaugh pointed out that the plaintiffs’ position could prevent officials from urging the press to safeguard national security by, for instance, asserting that a forthcoming article might imperil the troops.

Even Gorsuch, who started out sympathetic to Aguiñaga, was exasperated by the end, complaining that Doughty’s “universal injunction” was part of the “epidemic” that had to be stopped. Only Alito and Thomas sounded like surefire votes for the plaintiffs after nearly two hours of arguments, and Thomas’ heart was not fully in it. Alito stood alone in his increasingly uncontrolled and seething aggrievement.

The pandemic may be over, but Murthy remains a hugely relevant case. Perhaps most obviously, it is a cautionary tale about the extremism of Trump judges like Doughty, who keep issuing these lawless injunctions at the behest of red-state politicians, and the 5^th Circuit, which keeps upholding them. A disproportionate number of the Supreme Court’s cases this term emerge from the 5^th Circuit, which keeps appeasing the Trump-appointed zealots attempting to seize unimaginable amounts of power from the democratic branches. The chief justice is attempting to crack down on the kind of judge-shopping that occurred here, but the fight is just beginning. The evident frustration of Roberts, Kavanaugh, Barrett, and even Gorsuch on Monday suggests that a majority of the court is fed up with this political manipulation of the judiciary by rogue judges with undisguised partisan loyalties.

So, yes, SCOTUS is likely to reach the right result in Murthy. Alarmingly, though, so much damage has already been done. In light of Doughty’s injunction, the federal government shut down all of its efforts to combat disinformation, fearful of judicial sanctions. Bad actors have exploited this development to flood the internet with lies about the upcoming 2024 election. If foreign entities attempt to interfere with the election via social media, the Biden administration will have few tools left to fight them. It is just too late to revive the various task forces that worked with platforms before Doughty disbanded them last year. For the Murthy plaintiffs, then, a Supreme Court defeat may not matter much. They have already done immense damage to truth and transparency on the internet. And at this late date, the worst of it cannot be undone.