Not every scandal is a crime or a lawsuit. The Supreme Court threw out a blockbuster lawsuit against the Biden administration over social-media censorship in Murthy v. Missouri. Whether or not it was right to do so, its dismissal of the case on standing grounds was driven by understandable concern about judicial overreach. But what the case revealed was nonetheless a scandal. The Biden administration should be held politically accountable for its pervasive and illiberal campaign to silence the speech of its domestic enemies. Moreover, Congress can and should consider legislation to rein in the abuse of the executive branch in this fashion in the future. If Democrats are actually as afraid of an authoritarian second Trump administration as they claim, they should support such reforms.
The plaintiffs in Murthy substantiated with a voluminous evidentiary record running hundreds of pages a multi-year campaign during this administration to suppress the speech of American citizens. Justice Samuel Alito’s dissent, which only scratches the surface of the evidence, makes for damning reading. All the way from the president, who publicly accused Facebook of “killing people,” to White House press secretary Jen Psaki, to the surgeon general (who purported to issue a “health advisory” against “misinformation”), to White House officials who hectored the social-media giants in private emails and phone calls on a daily basis, the entire ethos of this administration has been bent toward silencing rather than addressing those it accused of “misinformation” about Covid and elections. Some of the administration’s targets, such as stolen-election conspiracists and peddlers of genuine falsehoods about vaccines, may not be the most sympathetic characters, but then, free-speech cases are often won by eccentrics, oddballs, and people on the fringes of truth and decency.
In the face of misconduct emanating from so many sources and sometimes involving the social-media platforms as willing accomplices, Justice Amy Coney Barrett’s opinion for a six-justice majority threw up its hands. The majority, while reiterating the principle that governments may not use their coercive powers to indirectly stifle speech, had some fair concerns about the institutional competence of the judiciary to police this sort of sprawling campaign of executive misconduct. Those concerns were heightened because this was a suit for injunctive relief rather than damages. Courts are good at identifying past misconduct, punishing it, and compensating its victims. They are not so well-equipped at crafting ongoing rules for an entire coordinate branch to follow when it is determined to evade them. The last thing the current majority of the Court wants is to become a right-leaning version of an imperial judiciary that runs entire arms of the government by injunction and consent decree. But we share Alito’s concern that the alternative is providing a rogue executive branch with a roadmap for abusing the constitutional rights of Americans.
This is the second time this month, after the FDA abortion pill case, that the Court cited a lack of standing to throw out a major challenge to Biden administration abuses of the law. It appears, from what seems to be an accidental leak on the Court’s website, that it stands poised as well to drop Idaho’s appeal from an order restricting its abortion law, after Barrett and Justice Brett Kavanaugh expressed concerns at oral argument that the case might be moot. That suggests that the conservative justices, far from being the lock-step “MAGA Court” of Biden’s imaginings, have vibrant debates over the limits on their own power.
The executive branch could use the same humility and restraint. If it won’t be provided by the courts, it will fall to Congress — and the voters — to impose it. Proposals have already been made for legislative restrictions on the tools that the executive branch can bring to bear to coerce social-media companies, or at least to require more public disclosure of government contacts with such companies. Congress should take up the issue with the sort of seriousness it has too infrequently brought to bear on the distempers of our present age.