Misinformation Spreaders, Dark Money Groups Lament Major Defeat At Supreme Court

Justice Amy Coney Barrett’s majority opinion in Murthy v. Missouri rejected a dubious legal theory aimed at crippling the government’s ability to combat online misinformation.

The Supreme Court handed spreaders of online misinformation and right-wing dark money groups a significant defeat on Tuesday in a case that could have sharply limited the federal government’s ability to combat false and misleading narratives online.

Murthy v. Missouri, originally filed as Missouri v. Biden in May 2022 by two Republican state attorneys general, targeted dozens of Executive Branch agencies and officials. At issue were their communications with social media companies, requesting moderation of misinformation and disinformation on their platforms related to topics like the 2020 election and the COVID-19 pandemic.

The case was later joined in August 2022 by a group of private plaintiffs, all of whom had had their content suppressed on social media. The group included contrarian doctors popular on the political right—former UC Irvine professor Aaron Kheriaty, who lost his job over his refusal to get vaccinated against COVID, and Great Barrington Declaration co-authors Drs. Martin Kulldorff and Jay Bhattacharya. The doctors have all been vocal promoters of natural immunity through infection, anti-mask narratives, and vaccine skepticism. 

Representing the private plaintiffs pro bono was the New Civil Liberties Alliance, a business-aligned, right-wing litigation outfit. The group, which has waged a war on the administrative state since its founding, trying to limit, for example, the Environmental Protection Agency’s ability to regulate greenhouse gas emissions, has received significant funding from billionaire industrialist and climate denial mega-funder Charles Koch. 

The case drew national attention early in part thanks to Elon Musk, the owner of X, formerly Twitter. Musk and others on the right had long insisted that the platform he purchased had suppressed right-wing content. After buying Twitter, Musk granted limited access to the company’s internal documents to select reporters and allies, allowing them to sift through and report on their findings of supposed government-tied censorship. Days after the first Twitter Files report came out in December 2022, Musk met with Bhattacharya to discuss how his account had been suppressed on the platform. Days later came another Twitter Files release purporting to show that the government had “rigged” the COVID-19 discourse, allegedly silencing dissenting public health opinions like Bhattacharya’s.

None of the Twitter Files releases, however, demonstrated anything more than requests from government to Twitter to remove certain content and the company making its own moderation decisions. Twitter’s own lawyers said as much in a court filing from June 2023.

The plaintiffs in Murthy, however, argued that these requests to social companies amounted to jawboning in violation of the First Amendment. Relying largely on innuendo, the plaintiffs painted themselves as victims of government censorship.

Legal experts took issue with the idea that the Constitution precluded the government from making content moderation requests. In November 2022, Burt Neuborne, the Norman Dorsen Professor of Civil Liberties emeritus and founding legal director of the Brennan Center for Justice at New York University Law School, called the initial complaint in the case “a political document, not a serious legal document.”

Still, there was concern that the right-wing Supreme Court would rule in favor of the plaintiffs, dealing a devastating blow to the government’s ability to perform its duties. The Brennan Center filed an amicus brief in the case urging the justices “not to adopt a rule that prevents or chills communications between social media companies and local, state, and federal government officials.”

The potential of the case to damage the government was not lost on right-wing dark money groups either. Groups like The Heritage Foundation, which had been amplifying misinformation and contrarian medical voices—like Kulldorff and Bhattacharya—in order to turn public opinion against COVID-19 mitigation efforts, celebrated and amplified the case. When Doughty issued his sweeping injunction, Heritage called it a “landmark decision.” The Hoover Institution gave Bhattacharya, a senior fellow at the group, a platform to talk about how “Biden’s COVID censorship” had been “struck down in court.”

In fact, the initial Missouri lawsuit could not have been better engineered to get a damaging Supreme Court ruling against the administrative state.

The case was filed in the U.S. District Court for the Western District of Louisiana where it was presided over by Trump-appointed chief judge Terry Doughty. Doughty issued a sweeping preliminary injunction against the government, barring it from communicating with social media companies “for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected speech” and prohibiting it from working with non-governmental actors toward those ends. From there, it went to the notoriously conservative Fifth Circuit Court of Appeals, also stacked with Trump appointees. Although that court narrowed the injunction, it did find that the government had likely violated the First Amendment.

Ultimately, however, the Supreme Court decided 6-3 that the plaintiffs lacked standing. Justice Samuel Alito dissented, joined by Clarence Thomas and Neil Gorsuch.

The majority opinion was authored by the Trump-appointed Justice Amy Coney Barrett, who was joined not only by liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson but Chief Justice John Roberts and Barrett’s fellow Trump appointee Brett Kavanaugh. It represented a significant rebuke of the Fifth Circuit and the district court.

“The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation,” the opinion read. “And while the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. The Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.”

The majority continued on, explaining that “The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole.” 

“Because ‘standing is not dispensed in gross…plaintiffs must demonstrate standing for each claim they press’ against each defendant, ‘and for each form of relief they seek.’” The Court held. “This requires a threshold showing that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic. Complicating the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than its own judgment, is the fact that the platforms began to suppress the plaintiffs’ COVID–19 content before the defendants’ challenged communications started.”

The majority opinion noted that the plaintiffs had not presented evidence that the government itself had harmed them. For example, “the three plaintiff doctors,” the Court explained, had not “established a likelihood that their past restrictions are traceable to either the White House officials or the CDC” and had “highlight[ed] restrictions imposed by Twitter and LinkedIn, but point[ed] only to Facebook’s communications with White House officials.”

It was this failure to demonstrate concrete injury by the government that led the court to reverse the Fifth Circuit and remand the case.

“The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” the Court wrote. “This Court’s standing doctrine prevents us from “exercis[ing such] general legal oversight” of the other branches of Government. TransUnion, 594 U. S., at 423–424. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.”

In response to the ruling, prominent Republicans, misinformation spreaders, and right-wing dark money groups and their operatives lamented what they saw as a victory for censorship.

“Very disappointed in the Supreme Court's ruling in Murthy v. Missouri, which effectively says the government can delegate its unconstitutional dirty work to private companies with impunity,” former GOP presidential candidate Vivek Ramaswamy wrote on X. “This flies in the face of precedent.”

“The Supreme Court just ruled in the Murthy v. Missouri case that the Biden Administration can coerce social media companies to censor and shadowban people and posts it doesn't like,” Bhattacharya tweeted. “Congress will now need to act to enforce the Constitution since the Sup. Ct. won't.” 

Anti-vaccine conspiracy theorist and independent presidential candidate Robert Kennedy Jr., meanwhile, declared that “The Supreme Court got it wrong – and has failed to uphold its responsibility to the Constitution by finding no standing in Murthy v. Missouri.”

The Brownstone Institute, a well-funded right-wing dark money group that promotes vaccine skepticism and COVID misinformation with the aim of combatting government mitigation efforts, responded to the ruling with a blog post declaring “The Court Green-Lights Censorship,” touting Alito’s dissent. Brownstone has been affiliated with some of the private plaintiffs including Kulldorff and Bhattacharya. 

Brownstone founder Jeffrey Tucker, an anarcho-capitalist and child labor advocate, said it was a “sad day.” The Reason Magazine, the publication of the Reason Foundation, which has ties to Koch and other big right-wing money, called the ruling “a big, flashing green light that jawboning may resume.”

The New Civil Liberties Alliance turned defeat into a call to action, posting on X that “The Supreme Court has enabled the censorship industrial complex in Murthy v. Missouri! Follow us to know our next steps in the legal fight against government censorship.”

Jenin Younes, the NCLA litigation counsel on the Murthy case, who had briefly gone to work for the GOP congressional subcommittee on the weaponization of government, promised that the fight was not over.

“Murthy v. Missouri is NOT over,” she tweeted. “The underlying case remains in the district court, where we intend to proceed with discovery and obtain the evidence the Court says we need to establish standing. A lot of misinformation going around about this 😉.”