Plaintiffs in Landmark Online-Censorship Case Prepare for Next Round of Legal Fight after SCOTUS Defeat

Plaintiffs in the landmark Murthy v. Missouri online-censorship case will continue fighting against the government’s ability to pressure social-media platforms into restricting certain forms of speech after the Supreme Court ruled against them on Wednesday.

The Supreme Court ruled 6–3 that the plaintiffs in the case, five social-media users and two states, lacked standing to sue the government for injunctive relief over its coordination with social-media platforms and nonprofits related to online speech restrictions.

Although the Court sided with the Biden administration, it did not rule on the merits of the government’s censorship activities, meaning the plaintiffs will seek to go back to discovery to obtain further evidence of their claims.

“The idea would be that we go back and get the discovery we need to prove it,” Jenin Younes, an attorney for some of the plaintiffs, told National Review.

Younes is litigation counsel for the New Civil Liberties Alliance (NCLA), a legal organization opposed to the expansion of the administrative state.

Three of the plaintiffs, Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, are medical doctors who became known for opposing coronavirus lockdowns and other stringent restrictions. NCLA represented the doctors and health-care activist Jill Hines in the Murthy case.

Kulldorff, an epidemiologist, told NR earlier this year Harvard fired him because of his coronavirus stances. He and Bhattacharya co-authored the Great Barrington Declaration, a public statement opposing coronavirus guidelines that was published in October 2020.

The plaintiffs received a limited amount of expedited discovery, and Younes believes there could be internal emails specifically naming their plaintiffs in government efforts to censor content online and thus establish their standing to take the case back before the Court. Documents obtained during the discovery process appeared to show the federal government’s coordination with Twitter, Facebook, and other tech companies to suppress certain opinions about the coronavirus pandemic.

Justice Amy Coney Barrett wrote the majority opinion and insinuated that two lower courts that sided with the plaintiffs wrongly interpreted the available evidence. A Louisiana district court and the Fifth Circuit ruled for the plaintiffs to limit the government’s ability to coordinate with social-media companies.

“This was an extremely massive record, and that was just from this limited discovery,” Younes said.

“I imagine what we’ll do is we’ll start by asking for more discovery and say, ‘Well, if the Supreme Court is going to hold us to this standard, then we need to be able to get that information,'” Younes said.

To support its case, the government cited emails in which the social-media platforms did not initially comply with their requests. But emails in the discovery reflect how the government pressured social-media platforms over a period of time into compliance.

“The government has used those emails to our disadvantage, especially since the Court doesn’t want to seem to take a close look at the record,” Younes said. “The point is [the government] kept ramping up the threats and the pressure until eventually they did comply.”

A similar theme is apparent from internal Twitter documents known as the “Twitter Files” and congressional investigations into the extent to which various federal agencies and closely affiliated third parties pushed social-media platforms to limit certain types of content.

“If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send,” Justice Samuel Alito said in his dissenting opinion, referring to the government’s online censorship push.

Former National Institutes of Health director Dr. Anthony Fauci’s email could be a point of emphasis based on a congressional investigation that appears to show that Fauci’s close aides conspired to dodge Freedom of Information Act request laws, Younes said.

Emails between Fauci and former National Institutes of Health director Francis Collins appeared to show them attempting to coordinate a public rebuke of the Great Barrington Declaration. Social-media platforms apparently suppressed mentions of the Great Barrington Declaration after Fauci and Collins’s push to discredit it.

“My rallying cry to disappointed Americans is this: Missouri is not done,” Missouri attorney general Andrew Bailey (R.) said on X after the Supreme Court’s ruling.

“We are going back to the district court to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all.”