I agree with Will Board and Jonathan Adler's post today that Judge Barrett's excellent majority opinion, which dismissed the case for the plaintiffs' lack of standing, reached the right conclusion. The plaintiffs had to prove actual damages, not hypothetical or speculative, that the court could remedy with a future injunction targeting the Biden administration. The fact that the Biden administration threatened Facebook with an antitrust lawsuit to force it to remove Robert F. Kennedy's vaccine skepticism posts during the COVID-19 pandemic does not mean that the Biden administration will behave this way in the future. At this point, we have no idea whether a COVID-like event will occur in the future, i.e., after January 20, 2025, or whether a Biden administration will be born. If Justice Scalia were alive and on the Supreme Court today, he would have agreed with Justice Barrett's opinion.
At the same time, Justice Alito's excellent dissent usefully summarizes the ongoing campaign of brutal and vicious intimidation waged by the Biden Administration against Facebook during the COVID-19 pandemic of 2021 and 2022. Biden threatened to break up Facebook in an antitrust lawsuit if it did not significantly censor the speech of vaccine skeptics. Facebook meekly complied, because it had more important issues to address. This was a clear violation of the First Amendment by the Biden Administration. This was a gross abuse of presidential power, which at the time was a high crime or misdemeanor. The plaintiffs in this lawsuit may be entitled to sue the various government officials named in the complaint for monetary damages, but they have no right to sue for future injunctive relief.
The remedy for Joe Biden’s future actions rests in the hands of American voters, who will decide this November 5. It is not the Supreme Court’s job to exercise general future oversight over the executive branch.
