Where Does Free Speech Go from Here?

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.” 

– Justice Samuel Alito, with Justices Clarence Thomas and Neil Gorsuch joining in dissent.

Those words ominously conclude a passionate dissent issued on June 26, 2024, in what those justices describe as “one of the most important free speech cases to reach this Court in years.” 

That case, Murthy v. Missouri, formerly known as Missouri v. Biden (and what some of us like to call Students for Liberty v. White House), revolved around whether government officials could pressure social media companies to censor Americans. The Court ruled for the government. 

RELATED: See Student For Liberty CEO Wolf von Laer’s statement on the decision. “​​This is precisely the reason Students for Liberty exists,” he writes.

However, despite this loss, the decision is but a speed bump in the fight for free speech. The Court has only granted the government a technical victory, merely ruling that the plaintiffs lacked a right to sue, not that the state’s actions were constitutional. 

Most importantly, the extent of the Biden Administration’s efforts to suppress speech and the government’s general role in controlling the public are now no longer conspiracy theories. The victims of viewpoint suppression have been vindicated, and those who oppose government entanglement in our media ecosystem are more ready than ever to land the next decisive blow. 

Background on the pivotal Murthy v. Missouri case

On July 4th, 2023 a federal district court judge in Louisiana handed down a powerful injunction barring certain government officials from communicating with social media companies because the facts showed they unduly pressured and coerced the companies to censor Americans. 

In that case, the plaintiffs presented tens of thousands of pages of evidence showing cooperation between the federal government and companies like Facebook to suppress content that went against the Biden Administration’s agenda. White House officials asked social media companies to address “misinformation” about topics like the COVID-19 pandemic, the Hunter Biden laptop story, and even general policy issues like abortion, climate change, and inflation. One of the exhibits featured in the case and cited by Judge Doughty was a Freedom of Information Act (FOIA) request that I filed along with my colleague Phil Magness, exposing efforts of public health officials like Dr. Anthony Fauci to discredit and organize media campaigns against views they disagreed with. 

See the full story of my FOIA request:

The evidence made clear that this project was part of a general government approach. President Biden publicly shamed companies for not addressing what he saw as misinformation and Surgeon General Murthy advocated that social media firms suppress content from “misinformation super spreaders.” High-ranking officials from throughout the Administration, such as the Department of Homeland Security, met privately and frequently with social media companies’ power players to demand action, and internal documents obtained by FOIA requests and in litigation revealed that the pressure from the government was constant and effective. 

Although COVID-19 is quickly fading into memory, many of us still remember the effects of the government’s policies on public discourse. I myself felt all along that the conversation around lockdowns, masks, and vaccine mandates was one-sided. Some of you might have noticed that credible voices, like those of Dr. Martin Kulldorff, Dr. Jayanta Bhattacharya, and Dr. Sinetra Gupta of Harvard, Stanford, and Oxford respectively, were demonized and suppressed for opposing lockdowns. 

Ultimately, the government’s mission to combat “misinformation” was hostile, even antithetical, to the principles that underpin our country’s system of self-government. And if you didn’t notice it during the pandemic, no worries: The truth is now officially recorded and verified in the facts of the case.

In short, this case involved what Judge Doughty described as “the most massive attack against free speech in United States history.” The injunction he issued stayed in place until the Supreme Court issued its decision a few days ago.

Still in the Supreme Court’s Hands

Despite that disappointing Supreme Court decision, it essentially kicks the can down the road. And the facts still don’t look good for the government. 

In summary, the majority opinion focuses on the question of judicial standing, an evolving and complicated topic of law that focuses on whether plaintiffs can link explicit harm to a specific wrongful action, giving them the right to sue. The majority and the dissent go on about whether there is a specific government action that unlawfully pressured companies like Facebook to censor the plaintiffs or whether the events were just coincidental.

Therefore, the majority opinion leaves open the question of whether the overall pattern of behavior the government exhibited toward social media companies was unconstitutional under the First Amendment.

Watch this quick primer on the First Amendment for a refresher of what you learned (or should have) in high school: 

Comparisons to NRA v. Vullo

However, the dissent takes the liberty of dedicating a section to the merits of the free speech argument, stating that the plaintiff “is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.” And the dissent isn’t just speculating; it draws a direct comparison to a case the Court decided unanimously on May 30, 2024, NRA v. Vullo. In Vullo, all the justices agreed that the New York state insurance regulator cannot pressure private companies to dissociate from the National Rifle Association. 

Here the government issued guidance and letters to insurance companies that worked with the NRA and other “gun-related groups,” stating that doing business with them can incur reputational risks while severing ties might be rewarded with leniency in ongoing investigations. Although the facts in Vullo are more explicit and clear than the more subtle and broad threats in Murthy v. Missouri, defenders of free speech now have a powerful precedent to invoke that explicitly condemns the use of regulatory leverage to force private companies to toe a political line. 


Looking beyond the legal nuances and technicalities, perhaps the most important thing Murthy v. Missouri did was shine a spotlight on faceless bureaucrats and shatter the notion of “misinformation.” 

It also put large private companies on notice: The public now knows that they aided and abetted — or at least were complicit in — one of the greatest assaults on freedom of speech in American history. Conspirators from both the government and private companies have been hauled before Congressional oversight hearings, exposed in FOIA requests, named in lawsuits, and criticized in popular media. Free speech defenders throughout society are starting to push back — whether through public advocacy, running for office, starting alternative media, or advocating for a return to free-speech principles in their existing institutions. 

Murthy v. Missouri might have punted on the free speech question (for now), but the case’s journey to the Supreme Court ignited a movement that is just getting started. It highlighted the devious intentions of those in power and showed that Americans are willing and able to defend their free speech rights in and out of the courtroom. 

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This piece solely expresses the opinion of the author and not necessarily the organization as a whole. Students For Liberty is committed to facilitating a broad dialogue for liberty, representing a variety of opinions.