The most consequential point in the Supreme Court’s opinion in Murthy v. Missouri, a case concerning arguably the greatest attack on free speech in the history of the republic, may have come in a footnote.

“Because we do not reach the merits,” Justice Amy Coney Barrett, wrote for the majority, “we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.”

That it felt the need to make explicit the already-obvious could be seen more as a self-indictment than any kind of cautionary note to the defendants; that it was confined to a footnote mirrored the way the court shrunk from its duty in how it ruled – or refused to rule – on the vital matters at hand.

The plaintiffs in Murthy had obtained and marshalled voluminous evidence demonstrating that senior White House officials and federal agencies coerced, cajoled, and colluded – sometimes leveraging putatively private cutouts as proxies – with social media companies to suppress disfavored news and opinions en masse on matters ranging from the Hunter Biden laptop story to election integrity and COVID-19.

Government cannot make private sector entities do that from which government itself is prohibited, including violating the First Amendment by abridging our right to free speech.

The trial and appellate courts found that the plaintiffs, alongside millions of Americans, were likely victims of this Censorship-Industrial Complex’s assault on the First Amendment by proxy, and sought to prevent the federal plaintiffs’ censorious conduct during the pendency of the case via preliminary injunction.

The federal defendants challenged this freeze on their alleged speech-policing, and the Supreme Court was poised, in taking up the case, to decide if the state had indeed converted private sector entities into rights-violating deputized agents.

Instead, as the majority’s footnote indicated, the Court cravenly punted on a technicality.

Plaintiffs lacked standing to seek an injunction, the majority ruled.

So who does have standing? How high is the bar of proof? High enough to allow for our First Amendment to be gutted?

On the one hand, the Court not ruling on the merits preserves the opportunity for it to hem in the Censorship-Industrial Complex later.

But remaining silent spoke volumes.

By refusing to take up the case on technical grounds – after having removed a stay during the pendency of the case freezing such speech-policing activities – they effectively announced it is open season on free speech in America once again.

The Court’s non-ruling was actually an unmistakable directive: For 2024, the Censorship Regime has a green light to interfere at mass scale in the election as it did in 2020 – only this time it will know to do it more surreptitiously, laundered through more cutouts, so as to make it even harder to discover, and trace directly – coercion, collusion and cajoling to people’s rights being violated, making and securing a favorable ruling on standing even harder for next time. 

This term the Court struck at the tyranny of the administrative state in ruling that defendants were entitled to go before a trial by jury, not before an agency court with an agency judge, jury, and executioner; and it said the Courts will stop deferring to agencies in making legal rulings just because a law may be ambiguous.

It also struck down chicanery from the DOJ on the exploitation of the “obstruction of an official proceeding” statute used by the Biden DOJ to railroad J6ers.

But when it comes to our free speech, Americans are out of luck.

And that undermines ultimately the entirety of the republican system that the Court otherwise in notable cases rightly defended.

This was a dereliction of duty of the highest order, and I fear, as Justice Alito laid out in his blistering dissent alongside Justices Thomas, and Gorsuch, that this is a ruling that we will come to rue – a ruling that will live in infamy.