Theme: Constitutional Order

EVEN MORE COMMENTS ON SUPREME COURT RULINGS
Third Post in a series where I try to explain the court’s cases and rulings for regular folk – and often how our NLI reforms would improve the law.

8) Murthy v. Missouri (Social Media Free Speech)
The Matter Before The Court:
Did the government conspire with or coerce social media companies to censor public speech, and is either platform censorship, or state censorship via coercion or cooperation with social media a violation of free speech.
The Problem:
The everyone, whether the public, the legislature, or the court is unsure how to resolve this issue. Neither the framers nor theorists of jurisprudence have solved the problem of criteria for truthful, reciprocal, liable, speech. So they gave us free speech. They gave us defamation. But they could not solve the problem of truth and liability such that the demand for truthfulness would not impose an undue constraint on what was yet unknown or uncertain.

The Answer:
There are at least the following criteria for censorship:
i) Decorum (rudeness)
ii) Content (hazarding and crime)
iii) Defamation (undermining and sedition)
iii) Bias (which is what we’re arguing about)
iv) Truth (whether a statement is testifiably true, and if not what can we testifiably warn against.)
v) Liability (what is the harm caused to others’ demonstrated interests and whether it is reversible or restitutable)
Of these criteria only iii) bias, and iv) truth are desired content in public discourse. Yet at the same time social media propagation of content survives by provocation of moral confirmation or offense.
I can’t cover each of these criteria in depth here but I will in a later post.
The net result is that the court cannot itself issue a ruling with this degree of legislative precision. And while common in common law history, we lack the capacity to put a suit for redress before congress.

The Court’s Decision:
The plaintiffs lacked standing to sue under the court’s existing requirements despite that there is no legislation or body of law or procedure for redress of such grievances – and the legislature is not capable of resolution of this issue by legislative agreement given the political utility of censorship and coercion of the population through the use of social media given the loss of the power of the mainstream media to frame opinion.

Multiple Interpretations:
a) There are too many people on the court who are incompetent – and who did not comprehend the depth of this issue.
b) The court does not want to effectively legislate this matter, and so is evading it by use of a technicality – despite that this is basic rights issue which is in fact the providence of the court, and there is no other means of redress of the grievance because the USA does not have an administrative court (a court for lawsuits against the state, it’s agencies, and it’s officials), nor does it retain access to nobility or it’s substitute (representatives and senators) who are capable of righting wrongs which are the exceptions at the margins, or proposing legislation that solves the problem directly and generally.
c) The court is punting an issue they want the Legislature to solve – which is consistent with their strategy against legislation from the bench.
d) All of the above. (This is the correct answer)

On The Subject of Standing:
The USA does not have an administrative court, where redress of grievances can be sought through suits against the state, its institutions, its bureaus, and its members.
The requirements for standing on the one hand, and over-application or sovereign immunity on the other provide an almost impenetrable defense of the state from the people.
Class action can be pursued at great expense.
Legislative action can be pursued at even greater expense.
Electing senators and congressmen can be pursued at an even greater expense.
We have no local aristocracy to appeal to for remedy.
And we have no monarchy to appeal to as a judge of last resort.
So the barrier to DEFENSE of our fundamental rights is unnecessarily, high even if the barrier to produce legislation in the production of commons is by design, necessarily high.

On the Subject of The Court Avoiding Legislation from the Bench.
It’s necessary that the court maintain it’s restoration of the prohibition on legislating by abuse of the court: what’s called “lawfare”.
However there is no provision in our constitution by which the court can ‘return’ some legislation or other to the legislatures for the resolution of conflicts, by clarifying for the legislature the question at hand, and even suggesting a field of solutions to the question.

Summary
So in summary to fix this problem:
– establish legal criteria for truthful reciprocal and biased speech.
– propose legislation to the legislature
– amend the constitution to formalize: a) an administrative court b) suit before the legislature c) the court returning legislation to the legislature for clarification.