On July 4, 2023, Louisiana-based federal Judge Terry Doughty issued a historic decision in the censorship case then called Missouri v. Biden (the case was filed by two state attorneys general, including Missouri Attorney General Eric Schmitt, who now sits in the U.S. Senate). The decisions made news not just for the result and the date it was issued, but for the importance Doughty showed to the underlying issue.
In fact, Doughty’s opinion echoed the lofty rhetoric of the great federal court decisions issued during the civil rights era. But the political dynamic had flipped. Instead of liberal federal judges siding with the federal government to strike down prejudiced state and local laws, as in the ’50s and ’60s, here we had a conservative judge siding with local officials and private citizens against a federal bureaucracy run by the Democrat Party.
That dynamic continues to cause confusion as Missouri v. Biden (now called Murthy v. Missouri) reaches the U.S. Supreme Court, which will hear arguments in the case on Monday. I have seen it firsthand in similar cases, like the “state action” case I am litigating for presidential candidate Robert F. Kennedy Jr., against Google in California. It makes this argument one of the most interesting in Supreme Court history. It will hinge on three critical questions.
Finding a Free Speech Majority
First, can the Murthy plaintiffs cobble together a “free speech” majority that upholds the liberal values underlying the state-action doctrine? Many people would assume the majority would follow
