Supreme Court grants review of censorship injunction

Yesterday the U.S. Supreme Court granted review in the case of Missouri v. Biden, renamed Murthy v. Missouri. This is a highly unusual interlocutory review in a case that hasn’t even come to trial. It treats the government’s social-media censorship operation, and an injunction against it.

The Supreme Court acts

The Supreme Court has dealt with an application for stay by the government since September 14. (See the dockets at the Supreme Court, the Fifth Circuit, and the District Court.) After issuing a series of administrative stays, the Court finally issued a paperless order:

Application (23A243) for stay presented to Justice Alito and by him referred to the Court is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, case No. 3:22–cv–01213, as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023, case No. 23–30445, is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application (case No. 23-411). The stay shall terminate upon the sending down of the judgment of this Court. Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting from grant of application for stay. (Detached Opinion)

As the order states, the Originalist Bloc, consisting of Alito, Gorsuch and Thomas JJ, dissented from staying the modified injunction. The case now has a new docket, 23-411, and a “Questions Presented” document that refers to the stay application. Those questions would appear to be:

1. Are the injuries-in-fact, that the two State plaintiffs and five individual plaintiffs claim, traceable to government action?
2. Have the government’s communications to various Trust and Safety (moderational) Teams gone beyond legitimate dissemination of the government’s positions on issues of controversy?
3. Did the government punish, or threaten to punish, social-media platforms – or not?

Justice Samuel A. Alito wrote the dissenting opinion, in which Justices Neil Gorsuch and Clarence Thomas joined. One can read that dissenting opinion here.

Briefly, the arguments the government is now making do not impress Justice Alito. The government, in his view, has shown no concrete harm that has resulted from the Big Injunction. Alito regards the stay as a grave mistake that will at least create an appearance of evil.

Reaction

The Supreme Court acted, of course, after the government actually demanded the power to continue censorship of social media. Benjamin Wetmore had the official reaction of The Gateway Pundit, of which lead plaintiff Jim Hoft is editor-in-chief. John Burns, attorney for The Gateway Pundit, expressed pleasure that the Supreme Court will review the matter thoroughly. But he expressed dismay at the stay of the injunction. Justice Alito wrote that a decision might not be forthcoming until next springtime.