BREAKING: Missouri, Gateway Pundit lose speech case in U.S. Supreme Court

By William H. Freivogel

Missouri and the right-wing Gateway Pundit lost their U.S. Supreme Court claims that the Biden administration had coerced social media companies to suppress their free speech by removing false and dangerous internet posts about COVID-19, vaccinations and election denial.

The vote was 6-3 with three of the more moderate conservatives joining the three justices appointed by Democrats. Amy Coney Barrett wrote the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. Dissenting were the court’s three most conservative members, Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch.

The court alignment is significant because of several recent cases where two or more of the conservatives in the middle – Barrett, Kavanaugh and Roberts – have joined with the more liberal judges to create a moderate majority. Another example was today’s decision that allows women in Idaho to have an abortion when their health is at risk, despite a state law prohibiting it.

For Missouri to prove a violation of the First Amendment, it had to show that the government had coerced the private social media companies into taking down the conservative posts. Proof of government coercion was required because the First Amendment only protects people against government suppression of speech. 

Barrett said that Missouri, Louisiana, the Gateway Pundit and other conservative commentators had not connected the dots. They had not shown that a government official’s coercion about a particular post had resulted in a social media platform’s decision to take down that post. Because they did not connect these dots they did not have standing to sue, the court ruled.

“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,” Barrett wrote. “This Court’s standing doctrine prevents us from exercising general legal oversight of the other branches of Government.”

NPR’s Supreme Court correspondent Nina Totenberg described Barrett’s opinion this way: “In a rather ladylike way, she dismembered the Fifth Circuit’s reasoning from A to Z. She said that the Fifth Circuit also erred by treating the government and the platforms each as a unified whole and that the plaintiffs had to demonstrate standing for each claim they press against each official who allegedly did anything bad to them. And this requires a certain threshold to show, namely, that a particular defendant – the defendant here is the official – pressured the particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech. It’s a lot of particulars…”

Barrett said that the conservative 5th U.S. Circuit Court of Appeals had overlooked “clearly erroneous” findings of lower court judge Terry A. Doughty who had ruled last July 4th that the Biden administration’s pressure on social media companies was “the most massive attack against free speech in United States’ history.”

One of the faulty facts in Doughty’s opinion cited by Barrett was a supposed “censorship request” from the administration. “The record it cites says nothing about ‘censorship requests,’” Justice Barrett wrote. “Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues.”

Even though Missouri lost in the Supreme Court, Missouri Attorney General Andrew Bailey’s press statement didn’t sound like it. The statement said: “Today, Missouri Attorney General Andrew Bailey announced that the United States Supreme Court has cleared the way for his office to obtain more discovery in his landmark First Amendment case exposing Joe Biden’s censorship regime. In his case, Murthy v. Missouri, Attorney General Bailey argued that top officials in the federal government coerced big tech social media companies into violating Americans’ right to free speech.”

Republican Missouri Sen. Eric Schmitt, who filed the lawsuit while he was attorney general, issued a slightly less upbeat statement: “While this isn’t the outcome we were hoping for, this case is a huge win for Americans and for the whole country, because it exposed nearly every part of the Biden Administration’s vast ‘censorship enterprise.’ I’m extremely proud to have filed this case as Missouri’s Attorney General. Many knew that censorship was happening before this case, but Missouri v. Biden  broke the dam wide open and showed the entire world the lengths that the Biden Administration and Democrats went to silence disfavored speech.”

Barrett’s opinion explained in detail why Jim Hoft, the St. Louisan who publishes the far-right Gateway Pundit along with his brother Joe, did not have the standing to sue.

In claiming standing, “Hoft points to the FBI’s role in the platforms’ adoption of hacked-material policies,” wrote Barrett. “And he claims that Twitter, in December 2020, censored content about the Hunter Biden laptop story under such a policy. The post was titled: “‘Where’s Hunter?  How is Hunter Celebrating the New Year?  New Photos of Hunter Biden Pushing Drugs on Women Emerge.’” 

But Barrett said Twitter took the action based on its own policy, not the FBI’s, therefore removing the necessary showing of government coercion. She wrote, “Hoft’s own declaration reveals that Twitter acted according to its ‘rules against posting or sharing privately produced/distributed intimate media of someone without their express consent.’ Hoft provides no evidence that Twitter adopted a policy against posting private, intimate content in response to the FBI’s warnings about hack-and-leak operations.”

Despite Barrett’s pointed criticism of the lower courts’ faulty factual record, Justice Alito said in dissent that he was prepared to accept that record. “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,” he wrote.. “Freedom of speech serves many valuable purposes, but its most important role is protection of speech that is essential to democratic self-government.”

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar and covered the Supreme Court. He is the publisher of Gateway Journalism Review.