I want to make sure this is clear from the get-go—this is a terrible opinion. I am not happy about it. HOWEVER, this opinion had to do with the TEMPORARY INJUNCTION in this case. For details, please see my pinned tweet on X. The court is making a decision whether, at this stage of the game, after limited (will get to that in a moment) discovery, the Plaintiffs have the right to an injunction that would halt the government from coercing and cooperating with social media platforms to censor speech.
The Justices used whether the plaintiffs had STANDING at this stage of the game as their basis for decision. Which I ALSO think is utter nonsense. When this case went before them, they placed a stay on the injunction that was decided in the lower district court AND the 5th circuit court of appeals.
We can get into the future later on in the thread—but to note: when the stay was placed on the temporary injunction, three Justices DISSENTED stating their colleagues hadn’t read the record. I believe that still to be the case. I believe the Justices made this decision based on the oral argument. The oral argument was POOR.
Here is some of the meat from the syllabus: “Neither the individual nor the state plaintiffs have established Article III Standing to seek an injunction against any defendant.” The SCOTUS is saying at this stage, the plaintiffs must show the substantial risk that in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one government defendant. “Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden. On the record, in this case, that is a tall order”
I disagree. The record is FULL of instances that demonstrate the potential for future harm, and also for past harm. I don’t believe the Justices read the record. Had they, there just isn’t a way to come to this decision. This is why the oral argument was so important. Three of the Justices WARNED that the oral argument would be important.
The more I read, the worse it gets. This is the same sort of obscure nonsense that allows the government to get away with the large majority of censorship they have done so far, however even in discovery SO FAR, they have concrete coercion. SCOTUS believes that Plaintiff Jill Hines has the best chance at proving harm, but they also say that self-censorship can’t be weighed here—standing can’t be obtained by “manufacturing harm” against themselves that doesn’t equate to a real injury. And again, the SCOTUS punts “without evidence of continued pressure by defendants, the platforms remain free to enforce, or not to enforce their policies against COVID-19 misinformation...” This, even as the record shows that platforms CRAFTED THEIR POLICY based on government intervention... Bad. Bad. Bad.
On the “right to listen,” the court says the Plaintiffs haven’t identified a particular speaker they have not been able to hear from. This is one reason why a class certification would have gone a long way in this case. One was sought at lower and denied.
Here, SCOTUS is outlining each department and the actions they took. If what I highlighted isn’t coercion, we have different definitions. This is almost embarrassing. The SCOTUS leans heavily on what the platforms did on their own but does not take into account the record in the case.
The SCOTUS will not address whether coercion happened. They punt. On standing issues. Read carefully “At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We, therefore, lack jurisdiction to reach the merits of the dispute.” Basically, more discovery is needed, as per SCOTUS, and as I am reading ahead, I can say with certainty that this case will end up in front of SCOTUS once again.
Here, the SCOTUS almost tells the Plaintiffs they should have been suing for their past harms rather than the harms they will experience in the future. Because they are looking for relief from FUTURE harm, the past injury can only be used in a predictive nature…
Tomi Lahren and Tucker Carlson suffered DIRECT harm from censorship via government coercion. The government said to social media platforms, “Remove this,” and the platforms DID. They aren’t plaintiffs… Do we see why this will become a problem? The standard for injury the SCOTUS is requiring at this stage is VERY difficult to “prove” even though it really is proven. Will more discovery bring more of this evidence? I believe it will. But at this stage, with LIMITED discovery, we haven’t gotten this precise of a piece of evidence just yet. I’d make the case that the closest we have are @DrJBhattacharya and potentially (enjoined) plaintiff @RobertKennedyJr. Additionally, SCOTUS keeps saying discovery was extensive. It was not.
This is going to be an insanely tough bar to meet. Can Plaintiffs meet this standard? I believe with more discovery they may be able to. But holy hell, SCOTUS. “You are going to need to prove for every allegation that the government coerced Twitter to censor you before they had ever censored you before…” Come on.
Who wrote this?
The record in Missouri v. Biden shows the link between the government and the NGOs. The Justices needed only to read the transcript of the hearing at the district court for the preliminary injunction. They clearly did not. There is a separate case pending in Justice Doughty’s court regarding the EIP.
@HealthFreedomLA FTW—She makes the best case as per SCOTUS.
I haven’t gotten to the dissent yet, but the affirming Justices seem to want to make clear that they are wrong in a footnote.
We clearly have Justices on the court that are absolutely clueless…
It’s all about standing for this decision ON THE INJUNCTION—whether or not plaintiffs can show future harm is possible. This is the standard SCOTUS is laying out—an instruction manual for the government on how they can get away with censorship via coercion.
“We reverse the judgment of the Fifth Circuit and remand the case for FURTHER PROCEEDINGS consistent with this opinion…” THE CASE WAS NOT “overturned.” The case was not “dismissed.” The case and its discovery will continue. NOW— TO THE DISSENT.
I can already tell I am going to agree with everything they say. Because they are right.
“If the lower court’s assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this court in years.”
In footnotes, the dissent notes the lab leak theory as one of the suppressed “narratives” that ended up being TRUE. “If any of the plaintiffs have standing, we are obligated to reach the merits of this case.”
Alito: “Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by…” “What the officials did in this case was more subtle than the Han-handed censorship found to be unconstitutional in Villa, but it was no less coercive. And because of the perpetrator's 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…”
Alito notes the difference between newspapers and social media, stating that Section 230 is under the hands of the government and can be used as a cudgel.
Do you see the difference when YOU HAVE READ THE RECORD?
As I said, Tucker Carlson. Alito read the record.
Alito is literally outlining the entire case in this brief retelling…
If THIS isn’t coercion as per the other Justices, WHAT would constitute it?
Dissent takes a majority to task over their ridiculously literal requirement for “standing”
Again, the standard set so high as to contradict another SCOTUS opinion about the census.
I don’t need to add much comment here; the dissent is hotly criticizing the brand-new majority standard for standing and forward harm.
On the future harm front, the court is also now imposing new and ridiculously stringent redressability requirements—Read:
“And as for the supposedly “fleeting” nature of the numerous references to potential consequences, death threats can be very effective even if they are not delivered every day.”
Alito rightly accuses the White House of “engaging in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena.”
In closing…
My analysis:
This is the most important civil liberties case we have ever had. It affects EVERY social media user. INCORRECT REPORTING ON THIS CASE IS HIGHLY DETRIMENTAL.This ruling, while dealing ONLY with the temporary injunction in the case and not with the case as a whole, is definitely a hammer that will make it VERY difficult to win in totality. And when I say that, I mean that if the case wins at the district court, and then it is upheld at the 5th, it WILL be back in front of SCOTUS again, with the stringent standards set forth in this utterly ridiculous opinion. It will have ramifications for MANY future free speech cases.
As Alito notes, it is even contradictory to recent opinions, such as the one involving the NRA. “Nefarious” actors will cite it—and we need to PRAY that the 5th court is not persuaded by the SCOTUS here when they make future decisions. We have to PRAY they read the dissent as it is meant.
I am not worried about the case continuing at the district level. Judge Doughty is a constitutionalist who loves this country and will continue to rule that way. It is just going to make Missouri, LA, Hines, et al. 's journey that much more difficult.
As I said, when oral arguments happened—I wasn’t confident we would win this one. I didn’t think we would. I even properly called it—6-3. However, the case WILL continue, and using the hints and tidbits here, I have no doubt plaintiffs will continue and succeed.
Just Friday, they filed a motion for a third-party subpoena based on the hubris of the Fauci crew attempting to avoid FOIA. There will be more to come. I will continue to cover it.
In closing, when I don’t know about a topic or a story I am not sure of, I don’t start opining about it and making baseless and untrue claims. I don’t start declaring things “dismissed,” “overturned,” or “defeated” when that is NOT what is happening and I have no idea what the record is, clearly.
I would encourage everyone to stop and breathe a minute before they run. It is one of the reasons I ALWAYS provide threads, information, and receipts with in-depth reporting. It is one of the reasons I ask experts questions if I am not sure of the answers. We need good, solid information with which to make future decisions, and bad journalism does the opposite.
With all of that being said, the case continues, albeit with a significantly more difficult lift, and we will continue to cover it for you in detail, with receipts, every step of the way.
