JEFF CHILDERS

The Supreme Court let rip one of its biggest decisions yesterday in the Missouri v. Biden case. In the World Series of Big Decisions, the Court swung its giant judicial whiffle bat and struck out. USA Today ran the story with the triumphant, self-hating headline, “Supreme Court says Biden admin can combat social media misinformation in free speech case.”

I suppose it was inevitable. Now we have self-hating reporters. One struggles in vain to understand why media platforms like USA Today would celebrate a Supreme Court decision that allows the federal government to pressure media platforms like USA Today about what to say, or be sued into the regulatory Lake of Fire.

Maybe it’s because USA Today is already a wholly-owned government subsidiary and a good little doggie. But I digress.

On the other hand, conservative media was understandably outraged. But the apocalyptic hot takes are, as usual, slightly overwrought. I disagree that the Court’s decision yesterday was any sign we need to head for the lifeboats or get the band up on deck playing classical hits to calm the passengers.

Do not panic until I give the signal.

Remember the Superman fallacy. The Supreme Court will never ‘save us.’ It is not a savior. Occasionally, it does something miraculous, like the Dobbs decision, and other times, it does something awful, like the Roe decision that Dobbs overturned. That is how the legal system works. And it’s also how it sometimes doesn’t work, if you follow the logic.

That said, yesterday’s decision is perhaps better described as a woeful missed opportunity, destined to become a footnote in the great postmillennial freedom wars, rather than any Constitutional setback like Roe. The six Justices in the majority, which included all the liberals, did not actually endorse government censorship.

Instead, using a hyper-skeptical lens, they denied a preliminary injunction on technical grounds.

The underlying case, Missouri v. Biden, is not over. Justice Amy Coney Barret wrote the 6-3 Majority opinion. Justices Thomas and Gorsuch joined the excoriating dissent written by Justice Alito.

I’ll begin with the majority’s conclusion. They didn’t approve of —or even deny— the government’s pressure on social media companies to hogtie citizens who were “spreading misinformation.” Instead, the Majority found that the plaintiffs, all of whom had been somehow censored by social media during the pandemic, failed to completely connect their individual censorship to a specific government action. Plus, it was too much reading:

My legal mentor, a legit legal genius, always says that appellate courts have a big dusty tool shed out back. They can root around in the shed whenever they need some archaic doctrine or other to do a particular job. And that’s just what the Majority did here. They pulled out the old push mower of nitpicky literalism and cropped the lawn of facts down to just under the minimum grass height for an injunction.

The problem was too much evidence. Judges, the Court soberly noted, are not like pigs:

To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But it is especially important to hold the plaintiffs to their burden in a case like this one, where the record spans over 26,000 pages and the lower courts did not make any specific causation findings. As the Seventh Circuit has memorably put it, “judges are not like pigs, hunting for truffles buried in the record.”
Or maybe judges are more like blind pigs. One might fairly ask how the Majority managed not to discover any direct evidence of government censorship in that voluminous, 26,000-page record. The Minority found it easily. In its second footnote, the Dissent cited the House Judiciary Committee’s Interim Staff Report, titled “The Censorship-Industrial Complex: How Top Biden White House Officials Coerced Big Tech To Censor Americans, True Information, and Critics of the Biden Administration.”

That House report, which included all the evidence any judge could possibly have wanted, must have been one of the buried truffles in the appellate record. It was there, but it was just too much work for the average pig to root out.

Unlike the Majority, the Dissent found the “voluminous record” to be a help and not a hindrance:

Purely private entities like newspapers are not subject to the First Amendment. They may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, and that is what happened in this case. The record before us is vast.
Relying on the vast record, the Minority clearly and compellingly described what the evidence actually amounted to: the most important free speech case in a generation:

If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years.
We are obligated to tackle that free speech issue. The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.
That is regrettable.
What the officials did in this case was subtle, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision will get the message: If a coercive campaign is carried out with enough sophistication, it may get by.
That is not a message this Court should send.
And so we see the hinge between the two sides. The government’s efforts to manipulate the social media platforms into censoring everyday Americans were “subtle” and “sophisticated.” They were cunning. They worked behind the scenes. They innocently claimed the mantle of good government, just simple (but well-paid) bureaucrats working tirelessly for the safety and welfare of average citizens during a tragic pandemic.

The good news was that even the Majority seemed skeptical of the government’s pathological lies. But the Majority strategically wondered whether these particular plaintiffs had proved it was government threats and coercion, rather than civic-minded, independent volunteerism, that produced the social media platforms’ ever-tightening censorship policies.

Like the rest of us, the Dissent was clear about the government’s so-called subtlety. The Dissent thought it was not subtle, or maybe subtle by obvious, and accurately described how the whole sordid scheme worked:

What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not even claim to be literally false, but nevertheless wanted obscured. And Facebook’s reactions to these efforts were not what one would expect from an independent news source or a journalistic entity dedicated to holding the Government accountable for its actions.
Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to know how they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser.
The picture is clear.
It’s worth repeating that the Majority’s decision did not make any new law that could rule out future lawsuits. Nor did it endorse censorship-by-proxy. We’re rightly frustrated because the Majority had in its porcine grasp a perfect chance to shut down this government overreach — but didn’t take it.

Michelle doesn’t like truffles either. She thinks truffle oil tastes like soap. Keep them french truffles away from the freedom fries, she always says.* (*or words to that effect.)

Contrary to USA Today’s frantic headline, the unfortunate decision still was not any “win” for Biden. Although the injunction has been “dismissed,” the lawsuit itself continues, for now. USA Today acknowledged the Court did not rule on the Constitutional issues:

And now the Administration is under an even more powerful microscope. Congressional investigations will only increase. For example, USA Today quoted Representative Jim Jordan (R-OH), who heads the House Committee on Weaponization of the Federal Government, and he says it’s full steam ahead:

Here’s the whole order, if you’re interested. (It’s curiously short, with fewer than 30 pages each for the Majority and the Dissent.)

https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf?utm_source=substack&utm_medium=email

Finally, I’ll say this about the always popular but never-knowable question of why? Why did the conservative justices flush this opportunity like a rotten truffle? We’ll never know. But I wonder whether the gravity of the Trump Immunity Decision is so strong that it’s warping the other decisions.

In other words, the Court desperately wants to avoid appearing like a political arm of the Republican party. Consciously or even unconsciously, if they know they are about to set the democrats on fire with a favorable Trump opinion, they might be tempted to pull back, just a little, from the other decisions. Give the dems a win, so it all looks even.

This case would have been a terrific candidate for being the sacrificial goat, since the democrats just loved it, even though it settled nothing. Who knows, but ever since King Solomon, there’s nothing judges love better than a little judicial baby-splitting.

It’s also possible the Justices have their eyes set on a better case winding its way through the appellate pipeline. Don’t ask me how better, I’m not a pig rooting around for lost car keys. Finding stuff is Michelle’s job anyway.

The bottom line is we still have work to do. It’s not over, not by a long shot. But this story segues nicely with the next two stories.

see the comment section for the next “Story”

The Department of Defence for the United States of America is a Rougue Enterprise and can never be trusted . See the first comment