Did The SCOTUS Just Give Trump A Major Issue?

Today the SCOTUS ruled that the two states challenging federal agencies—including the FBI—that are acting as free speech influencers lacked standing to bring the case. Technically, that means that the SCOTUS might entertain challenges to government pressure on free speech if the case were brought by plaintiffs with proper standing. Here’s an articulate presentation of that optimistic take, which disagrees with the idea that the SCOTUS is “allowing censorship” to continue:

Torsten Prochnow @TorstenProchnow

It’s not accurate to say the Supreme Court (SCOTUS) allows censorship and permits the White House to press social media companies to remove disinformation.

By dismissing the case without deciding the underlying First Amendment issue, the justices only avoided saying when governments go too far in interacting with media platforms about their content.

So they didn’t decide on the merits and left that decision for a later day. This means all they did was deny the plaintiffs standing and then effectively postpone the case, thus avoiding an actual decision on the matter.

This is not a “Yes, you are right” for the Biden administration, but it’s also not a “No, you are wrong,” which is what most conservatives had hoped for.

I am therefore sure that it is only a matter of time before the issue comes before the SCOTUS again—this time with plaintiffs who actually have standing—and then the SCOTUS will decide on the merits, which will be interesting to see.

As the saying goes: "Delayed is not denied."

Standing can be a complicated issue, so I won’t pretend to have anything to say on the legal technicalities. What I will say is that the First Amendment really is the foundation of all our civil liberties, and for that reason standing in cases such as this one—with such broad implications and ramifications—should not be be decided on narrow grounds. My general view is in line with Charlie Kirk’s:

Lacked standing means in theory you could find plaintiffs who have standing. But all Americans who have their speech censored by the government, regardless of whether or not it was outsourced to a third party, should have standing.

Anytime an American citizen has their constitutionally protected free speech curtailed or censored by their government, the injuring is obvious, therefore they have standing.

Alito, Thomas, and Gorsuch disagreed with the decision:

Charlie Kirk @charliekirk11

The 6-3 SCOTUS ruling backing the Biden Administration’s coercion of social media companies effectively means the government can censor Americans’ constitutionally protected speech so long as they outsource it to a third party. Unbelievable. Alito’s dissent is spot on.

9:52 AM · Jun 26, 2024

Here’s another excerpt from Alito’s opinion, in which he again stresses that government pressure/influence on speech amounts to coercion. Some, like Elon Musk, may be able to selectively (but not necessarily consistently) resist such coercion, but most others will buckle to the pressure, to some degree. That harms us all:

HallandaleBeach/Hollywood Blog @hbbtruth

”The court “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," @hamill_law @jenvanlaar @mirandadevine @TomBevanRCP @EdMorrissey

10:14 AM · Jun 26, 2024

As expected, Jonathan Turley is all over this case:

Justice Alito speaks for many in the free speech community in writing in dissent "this is one of the most important free speech cases to reach this Court in years." The court just took an off ramp.

This leaves free speech protections, for now, to the political system. This is why free speech should be the central issue in this presidential election.

I agree. As I wrote above, taking an off ramp on an issue that is so fundamental to all our liberties really doesn’t seem acceptable. Our political system has shown itself to be dysfunctional on one fundamental issue after another, so leaving the First Amendment to the political system verges on reckless failure to follow out the SCOTUS’ duty.

The last sentence by Turley is notable—this issue should be central in the upcoming presidential election. Zhou has taken a clear stand for censorship. This should be a no-brainer for Trump—an issue that affects all of us in most moments of our lives, instead of competing for who can luv genocide more. Turley wrote about this yesterday, arguing that if Trump embraces free speech that could prove to be a game changer in the election:

Biden is a threat to free speech. Trump should call him on it.

Donald Trump and other presidential candidates are missing a compelling argument going into this election. While democracy is not on the ballot, free speech is.

Since his dystopian speech outside of Independence Hall in 2022, President Joe Biden has made "democracy is on the ballot" his campaign theme. …

…, the other presidential candidates are missing a far more compelling argument going into this election. While democracy is not on the ballot this election, free speech is.

The 2024 election is looking strikingly similar to the election of 1800 and, if so, it does not bode well for Biden.

In my book "The Indispensable Right: Free Speech in an Age of Rage," released last week, I discuss our long struggle with free speech as a nation. It is an unvarnished history with powerful stories of our heroes and villains in the struggle to define what Justice Louis Brandeis called our "indispensable right."

One of the greatest villains in that history was President John Adams, who used the Alien and Sedition Acts to arrest his political opponents – including journalists, members of Congress and others. Many of those prosecuted by the Adams administration were Jeffersonians. In the election of 1800, Thomas Jefferson ran on the issue and defeated Adams.

We are now seeing what is arguably the most dangerous anti-free speech movement in our history. President Joe Biden is, in my view, the most anti-free speech president since Adams. Under his administration, we have seen a massive censorship system funded and directed by the government.

A federal judge described the system as "Orwellian" in its scope and impact.

…

Should Trump run on free speech? I think Turley makes a good case that by doing so Trump could fundamentally turn the Dem’s meme against them: The threat to free speech is essentially a threat to democracy, which can only function with a full and free flow of information. By running on this issue Trump would powerfully identify the true danger to democracy: The Dem party.

Will Trump make this a central theme for his campaign? It’s the kind of theme that could be tied into most of his other themes so far—immigration, the economy, crime. The SCOTUS may, unintentionally, have handed Trump a powerful issue—if he’ll take the ball and run with it.