In the recent Murthy v. Missouri decision, the Supreme Court hammered home the distressing conclusion that, under the court’s doctrines, the First Amendment is, for all practical purposes, unenforceable against large-scale government censorship. The decision is a strong contender to be the worst speech decision in the court’s history.
(I must confess a personal interest in all of this: My civil rights organization, the New Civil Liberties Alliance, represented individual plaintiffs in Murthy.)
All along, there were some risks. As I pointed out in an article called “Courting Censorship,” Supreme Court doctrine has permitted and thereby invited the federal government to orchestrate massive censorship through social media websites. The Murthy case, unfortunately, confirms the perils of the court’s doctrines.
One danger was that the court would try to weasel out of reaching a substantive decision. Months before Murthy was argued, there was reason to fear that the court would try to duck the speech issue by disposing of the case on standing.
Indeed, in its opinion, the court denied that the plaintiffs had standing by inventing what Justice Alito calls “a new and heightened standard” of traceability — a standard so onerous that, if the court adheres to it in other cases, almost no one will be able to sue. It is sufficiently unrealistic that the court won’t stick to it in future cases.
The “evidence was more than sufficient to establish” at least one plaintiff’s “standing to sue,” and consequently, as Alito’s dissent pointed out, “we are obligated to tackle the free speech issue.” Regrettably, the court, however, again in
