A brilliant and succinct summary of the abysmal situation we find ourselves in. As a Canadian, I failed to understand the importance of your second amendment until a few years ago. Now I get it.
My whole life from political awakening, I was a constitutionalist. My various political wanderings were based solely on my, sometimes mistaken, perceptions as to who was most true to it.
That ended in 2016 with the rolling coup against Trump which has only gotten worse over the intervening years.
We are in a post-constitutional era now. All my wishing won't bring it back and something new is coming.
I simply cannot reconcile myself to this claim, that "[w]e are in a post-constitutional era." How is it possible that we would abandon this essential safeguard to liberty? I so hope you're wrong. Using a constitution to circumscribe the power of the state is one of the greatest political inventions of all time. What could replace it that is better?
The transnational managerial classes (including digital capitalism) don't want to replace it, they want to destroy it so they can gain more power. They are mentally dysfunctional, postmodern sociopaths.
quoted a passage from the late Christopher Lasch’s book The Revolt of the Elites that is worth repeating here:
The thinking classes are fatally removed from the physical side of life… Their only relation to productive labor is that of consumers. They have no experience of making anything substantial or enduring. They live in a world of abstractions and images, a simulated world that consists of computerized models of reality – “hyperreality,” as it’s been called – as distinguished from the palatable, immediate, physical reality inhabited by ordinary men and women. Their belief in “social construction of reality” – the central dogma of postmodernist thought – reflects the experience of living in an artificial environment from which everything that resists human control (unavoidably, everything familiar and reassuring as well) has been rigorously excluded. Control has become their obsession. In their drive to insulate themselves against risk and contingency – against the unpredictable hazards that afflict human life – the thinking classes have seceded not just from the common world around them but from reality itself.
That Lasch book was the first thing I read after the 2016 election, and even though written years earlier it helped me make sense of the whole thing. Very valuable book.
Yep, there was a whole genre of what we would now call "anti-woke" stuff in the 1990s, such as Robert Kegan's theory of psychological development and Sokal's Hoax that described the earlier form of the insanity.
The actual origins of "woke" (as it emerged from postmodern, suburban consumer culture) seem to relate to the CIA funding neomarxists like Herbert Marcuse to create "controlled opposition" on the cultural-left after marxist international class revolution failed, 1950s/60s.
How Herbert Marcuse’s widow used a Scientology-linked cult’s methodology to gamify Identity Politics and thus helped steer the U.S. Left down the dead-end path of identitarian psychobabble.
Agree on the merits but the constitutional republic is dead and there is nothing I or anyone else can do about it . Possible to create a new one in part of the land area.
It would have been interesting to hear your analysis of the recent Supreme Court decision which solidifies your observations here. Somehow "conservative" judges couldn't see the blatant violation of the First Amendment when it comes to government interference in social media. You are right in saying that the US is no longer governed by the Constitution.
We don't know if they could see it or not, because they ruled exclusively on standing. It's a pretty big loophole in free speech protections but also the sort of 'technically correct' ruling that conservatives usually like.
Rulings on standing often seem like practical evasions. And I sort of get the value of that, sometimes. But what possible reason could there be to evade the First Amendment? I have read the ruling closely and the opinion begs the question: under what possible set of circumstances would anyone (aside from the owners of media companies) have standing in the actual world? No one. And that seems to be the point. I don't get it.
The thing about the standing decisions, notably the 1A atrocity this week and the 2020 election decision that is especially disturbing is that is states that are being denied standing. No one wants to see the courts clogged with frivolous lawsuits by random weirdos but when you have previously sovereign entities being denied any recourse on national issues of major importance with specific constitutional provisions this is extremely destabilizing. Exactly what is the recourse supposed to be? Secession?
For an example case that should in theory have standing, see Alex Berenson's.
The reason the courts have to enforce standing is that if they didn't they'd award themselves unlimited scope to rule on anything they liked, regardless of whether it had ever come up in the real world (as there would always be activists willing to file suits about whatever issue they cared about). It would be a vast expansion and redefinition of the power of the courts: no longer a system for resolving specific and concrete disputes, but a parallel government. That would be worse.
So for better or worse the court's ruling is correct. Their jurisdiction is pretty specifically limited to the federal government; the case where a group of people with shared ideological goals manages to build an alliance network between institutions that cooperates to achieve the government's goals is not explicitly contemplated by the Constitution.
You are so wrong on this it's not even funny. And yes, I am an attorney and I do practice in this area. But do keep telling yourself this was the "correct" answer on standing.
Chris - you have the right of it. This is pure sophistry by a middling intellect who has never found any right that the help - i.e. government employees that we pay - can't violate.
Constitution idolatry is strong in America because it is part of the brainwashing for 20+ years for the "educated" in America. Forgive them because they know not what they do.
I'm not American and standing is a common law concept that exists in other countries too. It often comes under attack by activist judges who would like to rule from the bench - Lord Diplock being a classic example - but the US has fairly strong rules on it compared to other countries. You haven't explained why the judgement was wrong as a matter of law, just made a credentialist argument from an anonymous account whose credentials we can't verify.
And - just like ACB's opinion - you've not explained anything about why Bhattacharya et al being silenced at the request of the USG through an intermediary isn't sufficient to establish the requirements for standing. Regardless - I don't care. I'm glad. I continue to wish for the collapse of the entire enterprise so that idol worshippers are forced to finally confront the stark reality that their Golden Calf - the State - is just that.
And read my stack if you want to check on my legal creds. It's all there.
The entire essence of the question the court is being asked to decide is this: under what conditions does the government overstep its First Amendment constraints on "abridging the freedom of speech" when such abridgement is implemented by coercing a private party?
The answer we got in Murthy vs. Missouri is "none." Since it's patently ridiculous to argue that the government is never able to do such a thing - that it does not actually have the ability to exercise coercive power over third parties - the court instead preserves the government's power to coerce speech by using a circular notion of "private party" to definitionally eliminate the standing of the suppressed party.
Here is the opinion, as I read it: if a private third party curtails speech which the government doesn't like then the courts cannot address the merits of the complaint. Why? Because the existence of an intermediate ("private") layer of control by definition negates the injured party's standing. The government is not off the hook based on the merits; they're off the hook based on the (sophistic) definition that a third party is by definition "independent". It's circular. It defines "third party" as "independent" - again, not in fact, as anyone can see how ludicrous that is - but by defining "independent" in such a way that the government is procedurally insulated from constraints.
Again, said slightly differently, not every case of third party censorship is going to be a First Amendment violation - but the ones which are will require consideration of the "merits," and this opinion makes that impossible. The only party with standing is the one that has been coerced - and of course they're the one party with a gun to its head.
Do you see my puzzlement? There doesn't seem to ANY avenue for ANY injured party to restrain the government as long as its control is laundered through a private party.
In an incredibly annoying footnote (#3) the opinion seems to grant that some standard might be applied to determine "when the Government transforms private conduct into state action" but fails to articulate that standard. To add insult to injury, the opinion refuses to address "the merits of the dispute" (p.8), declaring "We begin--and end--with standing". You can't consider the merits unless you have standing, but you only have standing if some vaguely referenced conditions have been met.
I do want to say that I am not a lawyer and I have zero legal training. If my interpretation is flawed I would love to understand why and fix it.
I think the issue with your interpretation is that they didn't argue any of that, because they stopped at the question of standing. And the reason there was no standing is that there wasn't sufficiently clear evidence that the government actually was coercing the providers.
The core of the whole problem is that these firms really didn't need much coercion. They were (still are) stuffed with activist types who were pretty much waiting for instructions from the "deep state". In that case it's quite hard to disentangle to what extent it's the government at fault vs the culture.
OK - I went and looked up what standing means in the law. It's confusing because of the three necessary elements (injury, cause, and redressability), it seems that the first two require the courts to answer questions of "merit." But the opinion says "we do not reach the merits" and "We begin—and end—with standing" - and then there is a detailed discussion of whether or not the causal chain was valid. Didn't the Fifth Circuit establish that the government caused the injury? And SCOTUS doesn't overrule on that basis? Or am I conflating "facts" and "merit"? Like I said - I'm not a lawyer. I'll do some more research. Thanks for your replies.
That’s the level Id like to see. “Standing” and other concepts that end up neutering the otherwise common sense interpretations of things is managerialism in its finest form. WRT to the pandemic, it would seem that everyone who got vaccinated and wore a mask and kept their kids out of school has standing.
This is backwards. Maybe I should write a proper post about this on my own Substack.
The essence of managerialism isn't rule following. The managerial regime may claim to be defined by a "rules based international order" but this is mere puffery; anyone who tests this claim will immediately find endless examples where regime members are allowed to publicly flout the rules with no consequences whatsoever, and where people who threaten it immediately have the book thrown at them. It is rule by law, not rule of law.
This Supreme Court ruling is a setback for free speech, BUT it is not managerial regime-ism as long as the rules are applied evenly. Standing is a critical concept for any society that wishes to constrain judges and empower politicians, which is a very anti-managerial thing to do. The current Supreme Court is making a lot of judgements and it seems to this foreigner that they are making winners and losers on both sides of the ideological aisle, you would need to present some clear evidence that they are enforcing standing rules selectively.
This case specifically is neuralgic because the question of standing is ambiguous, and it's easy to suspect it's ambiguous because the federal government has successfully found a workaround for the constitution. Unfortunately it's not actually the Supreme Court's job to patch up the constitution when workarounds are found, it's the job of Congress. Again this arrangement is a bulwark against managerialism.
Keep going, I am interested, not sure that you’ve convinced me yet, but I’d like to hear more. In this case the “standing” worked just like one expects in the managerial regime, it protects the interests of the managers to “manage democracy” as NS wrote about so brilliantly. Maybe this is an accident or an unintentional result of a nonmanagerial process, but I’d need to know more, because these kinds of rulings are exactly what keeps managers managing. No one has standing to say “hey, the government is restricting the speech of those who disagree with the government”. If no one has standing to say that, than I don’t even know what standing means. There is this need to prove harm, so the government can interfere with the flow of information that isn’t harmful who gets to decide that? I don’t know because apparently you have to prove that you were harmed (by proving standing) before you can prove that you were harmed. Perfect!
This is one of the very core and very old debates that separates left and right, for what it's worth. See Thomas Sowell's discussion in his book, Conflict of Visions.
Any genuinely neutral system will sometimes reach outcomes you disapprove of. Traditionally the left lacks patience with such outcomes and will demand that someone (we might call them a manager) uses their personal judgement to override the outcome of that system. They are a fan of judicial activism for this reason. The right traditionally prefer to accept bad outcomes of a system as inevitable, and preferable to rule of the arbitrary whims of empowered managers. Their preferred fix is to find a better system rather than empower managerial discretion. If no better system can be found then they prefer to take the collateral damage.
Standing is a classical part of the common law system. As I explain in other comments, it's a common sense rule and required to stop the legal system becoming abusive / being abused. Like all such systems there are times when it may yield outcomes that are correct or fair - on the system's own terms at least - but which are undesirable in the wider political context.
It is ironic and speaks to the depths of the challenges which lie ahead that even here, on a forum that revolves around analysis of the managerial regime, commenters rage against the workings of a system and demand to know why a manager of some sort didn't dispose of that system in order to achieve a better outcome.
The problem here is not the Supreme Court or the concept of standing. Both appear to be working as designed. The actual problem here is that the First Amendment stops the government from restricting speech, but it's not obvious that it stops the government asking/suggesting/ambiently encouraging eager-to-please fellow travelers to do it. If they succeed in the latter then it's not the government doing the forbidding, and the First Amendment doesn't apply. In other words, the Constitution is written for a world as the founding fathers saw it - in which a printing press is relatively easy to obtain but also easy for government agents to find and destroy, and in which the primary antagonist was the King. In such a world if someone wants to "speak" it's only really the government that can stop them. Alas, expectations change. The world of the 21st century still has printing presses, in fact much cheaper and faster machines than America's founders could have ever imagined. But our expectations are now much higher: we are no longer content with privately owned printing hardware, and instead wish to speak using online services created and run by a tiny number of non-governmental Managers™.
This is no mere technical problem! Almost immediately you get into deeply thorny questions. If Elon Musk bans you from X because you insulted him, this is clearly not a First Amendment violation. He paid for the platform, so he can kick you off it even if it puts your political speech at a disadvantage. Same goes for the previous CEO of Twitter too. What if you didn't insult them, but got banned for "misinformation"? Still not the government's fault. What if the government is demanding that Someone Rid Me Of That Turbulent Priest? Well, technically Twitter could ignore them. Or could they? Where is the line crossed between asking nicely and coercion?
All these are very ambiguous and difficult questions. It won't surprise me if the Supreme Court does in fact rule on this question at some point, and it also won't surprise me if they give a ruling that pleases you. But for them to get to that point they need a case where the government has unambiguously pressured a private sector operator to restrict political speech. If they don't have such a case they bend the rules and give the left a justified reason for attacking them (not that such a reason is needed for the left itself, but the centrists are what matters here). Berenson's case appears to meet that bar; this other one did not.
This is a great comment/post. Thank you. (Also thank you for your earlier comment on standing as a general legal principle.) I need to think through this more. Two quick reactions though.
First, the observation that the first amendment was conceived in an era where the means for "injury" were narrower (seize/destroy printing presses, the primary means for free speech or simply imprison/harass the speaker) means that "not abridging speech" doesn't map as neatly to a world where the government is massively more involved in the management of risk and social services - think the CDC.
Second, assuming for the sake of argument that the government has a legitimate interest in managing information flow, is there a legislative cure? In some opinions/dissents I've read the legislative flaw will be called out in general terms (Scalia used to do this a lot, and I vaguely remember Roberts writing something about the SC not having the job of "saving the people from the consequence of their legislators' action"). I might have to read Murthy again but I son;t remember that, especially since the opinion seems to suppose a generally benign role for the government.
Anyway - thanks again. I'm not interested in arguing for the results I prefer; anybody can do that. I'm trying to see - contra N.S. Lyons - if the constitution can still act as an authentic limitation on the power of the USG or if that ship really has sailed.
Always a constitutional conservative, I never thought that would be considered extremist. Indeed, that document supported diversity and inclusion from the get go. The mistake was never in the document but in our failure to honor it.
Now, it has been picked apart not for what it allows, but for the minutiae it purposely fails to address. That was the protected freedom to make and find your place in America. Now, your explicit goals must be yours by right, preferably at the expense of those who failed to do so in the past. Hardly a document that serves all, but a smorgasbord served by some for invited guests.
Our nation is gone, our culture rejected, our raison d'etre destroyed. We can't go back. So, what now? Start over, I guess. Let us man the barricades and make it so!
I cannot count the number of conversations I have had with practicing lawyers who seem to have literally no idea what the constitution does and what the Supreme Court is for. It's bizarre. They think SCOTUS is just another legislative branch in which the constitution operates as a shadow statute, with the "consequences" of SC decisions the only criteria which matter in assessing them. These are intelligent people who have made "the Law" their vocation, and have no idea what it is.
“The affectation of an “extremely untimely” Buckleyan conservativism dedicated to losing with gallantry is doubtless pleasant in the moment, but is ultimately suicidal.”
100% on 🎯 Wonderful response, thank you for a great essay.
Can you place these three figures in the context of Charles Kesler's original article? What do Kirk, Lasch and Scruton articulate that we have now lost?
I was thinking more about the general observation that the U.S. right has never really had the equivalent of a "Red Tory" tradition, and that such thinkers as Kirk and Scruton were marginalized by the ascendancy of the neo-conservatives in the 80's. Lasch was a man of the Left, but one who saw value in conservatives' support for the family, traditional education, religion, etc., and attempted to get the right to see that market fundamentalism subverted these things.
My belief is that the American right took a wrong turn in the 80's and what we're seeing today is in many ways a result of that turn. The work of men like the aforementioned, if it would have had more attention paid to it, might have provided some insights that would have kept the right on a more balanced track: concerns about an overreaching foreign policy, the rise of consumerism/commercialization, the decline of rural life and family farming, centralization and the rise of the bureaucracy, etc. These are things that have negatively affected the country in the past 30-40 years but which the main currents on the U.S. right have been either silent on or have actually contributed to the problems.
There is a lot to pick from in both Kirk and Scruton, but re Lasch I'd refer readers to his great First Things essay from 1990, "Conservatism Against Itself."
In retrospect during my lifetime we focused much too much on the external Soviet threat and not nearly enough on the internal “fifth column” threat. We are beaten but unbowed. Stand ready.
I generally like to read things that cause me irritation in opposition to what I think I know. The irritation motivates me to dig deeper in either solidifying what I think I know or changing what I think I know.
This piece is the exceptional exception. I do not possess the capability to articulate like N.S. Lyons, but I could have written a much rougher version of exactly this. It isn't at all conspiratorial, although for me it started that way over a decade ago as I grew a sense for what was happening as a major consumer of news and information... the Regime is real. It is the only real existential threat to the world's humanity.
Previously I have been quite depressed that I was a lonely voice shouting at the wall about these things. However, there is movement and progress that indicates the people are waking up from their campus and social media brainwashing. There seems to be a light forming at the end of a tunnel.
But there is an ugly requirement if we are to leverage the shift and fix what is broken. We cannot allow the any of the old guard conservatives holding their old views, nor certainly any of those that embraced the radical left, to achieve amnesty in their PR campaign to suddenly oppose all those things they had weaponized in support of the Regime. Even today Blackrock CEO Larry Flint is on a PR Campaign to distance himself from the Regime's Democrat Party after being one of their generals.
We must remember what these people did and make sure that their power is canceled just has they have exploited their power to cancel the voice of regular citizens.
N.S. Lyons has hit the nail right on the head again. I agree that the managerial/professional elite rejects the spirit of bourgeois republicanism and wishes for a governing structure where all power and privilege flow from the institutions they control. But what "time" is it?
N.S. seeks to wake up conservatives to understand their true nature. Perhaps you think you are a conservative, but you are either a shame-faced progressive or a counterrevolutionary! Unfortunately, the intellectual grounding for counter-revolution has yet to materialize in the consciousness of the "masses". The masses in fact do not know what time it is because no one really knows how close we are to a tipping point. Like edging along a narrow mountain path, it sometimes feels like it would be better to just jump and relive the anxiety, but where to jump?
Speaking only for myself, I'm happy to accept the label reactionary or counterrevolutionary. For me "conservative" is a dirty word that implies smug intellectual dishonesty. Philistine conservatism occupies the headspace among the masses where counterrevolutionary consciousness could grow, but like weeds in a garden conservatism chokes off its growth. What delays the counterrevolution is not the institutions, state and otherwise that oppose us, but rather the intellectual confusion called conservatism.
Imperialism (spreading democracy) and its domestic reflection the totalizing state (equity, etc.) ally with conservative voices to maintain the status quo by confounding the health of the nation with the health of the state. We know that the health of the state is war, but what is the health of the nation?
I'll offer my own half-baked opinion. The health of our nation is its memory. Especially the memory of our better times in years long past. As days turn into decades those memories begin to fade. Eventually they will be gone.
Exactly right. We must find ways to fight back. One way is to pay attention to and support Alex Berenson's Supreme Court case against the Biden administration for trying to silence him.
I try my best to only post Substack comments which express more or less fully formed thoughts. At the very least, it is always my intention to move the conversation forward in some way or some direction. There's not much value in emoting. But today I am gong to make an exception. This is a report on the psyche of one person: me.
The prospect of abandoning faith in the primarily constitutional framework for American self-governance, which seems from the historical perch of 2024 to have been indispensable to the success of the American experiment, fills me with something I can only characterize as dread. Lyons recently confronted this issue directly ("The Constitution Won't Save Us") - an unsettling challenge at the least. After reading Murthy v. Missouri this morning I find myself feeling almost sick.
Was the world always this way? Has the future always threatened to cleave from the past so radically, held on by the most tenuous of threads? We did have a Civil War. It's been chaotic before. Maybe. Jonah Goldberg once wrote that conservatism is the "temperament of muddling through" (or something close to that). It's a lot easier to embrace "muddling through" as a coherent political program when the whole experiment doesn't look like it's disintegrating. I don't know what to think. It's beyond disturbing.
It needed to be dismissive. We've allowed these people to run on too long now. They've done nothing, they speak up for nothing, they have no stomach for the population. We are all living in a prison of a sort. The doors are unlocked but no one is yet ready to turn the handle. The time is yesterday.
A brilliant and succinct summary of the abysmal situation we find ourselves in. As a Canadian, I failed to understand the importance of your second amendment until a few years ago. Now I get it.
Keep fighting with your pen, NS.
A fellow Canadian, I echo your sentiment about their 2nd amendment: prescient of the American founders.
My whole life from political awakening, I was a constitutionalist. My various political wanderings were based solely on my, sometimes mistaken, perceptions as to who was most true to it.
That ended in 2016 with the rolling coup against Trump which has only gotten worse over the intervening years.
We are in a post-constitutional era now. All my wishing won't bring it back and something new is coming.
I simply cannot reconcile myself to this claim, that "[w]e are in a post-constitutional era." How is it possible that we would abandon this essential safeguard to liberty? I so hope you're wrong. Using a constitution to circumscribe the power of the state is one of the greatest political inventions of all time. What could replace it that is better?
The transnational managerial classes (including digital capitalism) don't want to replace it, they want to destroy it so they can gain more power. They are mentally dysfunctional, postmodern sociopaths.
---
https://theupheaval.substack.com/p/reality-honks-back
excerpt:
quoted a passage from the late Christopher Lasch’s book The Revolt of the Elites that is worth repeating here:
The thinking classes are fatally removed from the physical side of life… Their only relation to productive labor is that of consumers. They have no experience of making anything substantial or enduring. They live in a world of abstractions and images, a simulated world that consists of computerized models of reality – “hyperreality,” as it’s been called – as distinguished from the palatable, immediate, physical reality inhabited by ordinary men and women. Their belief in “social construction of reality” – the central dogma of postmodernist thought – reflects the experience of living in an artificial environment from which everything that resists human control (unavoidably, everything familiar and reassuring as well) has been rigorously excluded. Control has become their obsession. In their drive to insulate themselves against risk and contingency – against the unpredictable hazards that afflict human life – the thinking classes have seceded not just from the common world around them but from reality itself.
...
Still...the realities of life will eventually seep through. People become ill, crops fail, systems fail. Can’t avoid it
Yep, the "woke" crazies don't realize that Idiocracy (the movie) was not meant to be an instruction manual.
That Lasch book was the first thing I read after the 2016 election, and even though written years earlier it helped me make sense of the whole thing. Very valuable book.
Yep, there was a whole genre of what we would now call "anti-woke" stuff in the 1990s, such as Robert Kegan's theory of psychological development and Sokal's Hoax that described the earlier form of the insanity.
The actual origins of "woke" (as it emerged from postmodern, suburban consumer culture) seem to relate to the CIA funding neomarxists like Herbert Marcuse to create "controlled opposition" on the cultural-left after marxist international class revolution failed, 1950s/60s.
---
https://nonsite.org/the-first-privilege-walk/
nonsite. org /the-first-privilege-walk/
The First Privilege Walk
Christian Parenti
November 18, 2021
How Herbert Marcuse’s widow used a Scientology-linked cult’s methodology to gamify Identity Politics and thus helped steer the U.S. Left down the dead-end path of identitarian psychobabble.
...
Agree on the merits but the constitutional republic is dead and there is nothing I or anyone else can do about it . Possible to create a new one in part of the land area.
It would have been interesting to hear your analysis of the recent Supreme Court decision which solidifies your observations here. Somehow "conservative" judges couldn't see the blatant violation of the First Amendment when it comes to government interference in social media. You are right in saying that the US is no longer governed by the Constitution.
We don't know if they could see it or not, because they ruled exclusively on standing. It's a pretty big loophole in free speech protections but also the sort of 'technically correct' ruling that conservatives usually like.
Rulings on standing often seem like practical evasions. And I sort of get the value of that, sometimes. But what possible reason could there be to evade the First Amendment? I have read the ruling closely and the opinion begs the question: under what possible set of circumstances would anyone (aside from the owners of media companies) have standing in the actual world? No one. And that seems to be the point. I don't get it.
The thing about the standing decisions, notably the 1A atrocity this week and the 2020 election decision that is especially disturbing is that is states that are being denied standing. No one wants to see the courts clogged with frivolous lawsuits by random weirdos but when you have previously sovereign entities being denied any recourse on national issues of major importance with specific constitutional provisions this is extremely destabilizing. Exactly what is the recourse supposed to be? Secession?
For an example case that should in theory have standing, see Alex Berenson's.
The reason the courts have to enforce standing is that if they didn't they'd award themselves unlimited scope to rule on anything they liked, regardless of whether it had ever come up in the real world (as there would always be activists willing to file suits about whatever issue they cared about). It would be a vast expansion and redefinition of the power of the courts: no longer a system for resolving specific and concrete disputes, but a parallel government. That would be worse.
So for better or worse the court's ruling is correct. Their jurisdiction is pretty specifically limited to the federal government; the case where a group of people with shared ideological goals manages to build an alliance network between institutions that cooperates to achieve the government's goals is not explicitly contemplated by the Constitution.
You are so wrong on this it's not even funny. And yes, I am an attorney and I do practice in this area. But do keep telling yourself this was the "correct" answer on standing.
Chris - you have the right of it. This is pure sophistry by a middling intellect who has never found any right that the help - i.e. government employees that we pay - can't violate.
Constitution idolatry is strong in America because it is part of the brainwashing for 20+ years for the "educated" in America. Forgive them because they know not what they do.
I'm not American and standing is a common law concept that exists in other countries too. It often comes under attack by activist judges who would like to rule from the bench - Lord Diplock being a classic example - but the US has fairly strong rules on it compared to other countries. You haven't explained why the judgement was wrong as a matter of law, just made a credentialist argument from an anonymous account whose credentials we can't verify.
And - just like ACB's opinion - you've not explained anything about why Bhattacharya et al being silenced at the request of the USG through an intermediary isn't sufficient to establish the requirements for standing. Regardless - I don't care. I'm glad. I continue to wish for the collapse of the entire enterprise so that idol worshippers are forced to finally confront the stark reality that their Golden Calf - the State - is just that.
And read my stack if you want to check on my legal creds. It's all there.
The entire essence of the question the court is being asked to decide is this: under what conditions does the government overstep its First Amendment constraints on "abridging the freedom of speech" when such abridgement is implemented by coercing a private party?
The answer we got in Murthy vs. Missouri is "none." Since it's patently ridiculous to argue that the government is never able to do such a thing - that it does not actually have the ability to exercise coercive power over third parties - the court instead preserves the government's power to coerce speech by using a circular notion of "private party" to definitionally eliminate the standing of the suppressed party.
Here is the opinion, as I read it: if a private third party curtails speech which the government doesn't like then the courts cannot address the merits of the complaint. Why? Because the existence of an intermediate ("private") layer of control by definition negates the injured party's standing. The government is not off the hook based on the merits; they're off the hook based on the (sophistic) definition that a third party is by definition "independent". It's circular. It defines "third party" as "independent" - again, not in fact, as anyone can see how ludicrous that is - but by defining "independent" in such a way that the government is procedurally insulated from constraints.
Again, said slightly differently, not every case of third party censorship is going to be a First Amendment violation - but the ones which are will require consideration of the "merits," and this opinion makes that impossible. The only party with standing is the one that has been coerced - and of course they're the one party with a gun to its head.
Do you see my puzzlement? There doesn't seem to ANY avenue for ANY injured party to restrain the government as long as its control is laundered through a private party.
In an incredibly annoying footnote (#3) the opinion seems to grant that some standard might be applied to determine "when the Government transforms private conduct into state action" but fails to articulate that standard. To add insult to injury, the opinion refuses to address "the merits of the dispute" (p.8), declaring "We begin--and end--with standing". You can't consider the merits unless you have standing, but you only have standing if some vaguely referenced conditions have been met.
I do want to say that I am not a lawyer and I have zero legal training. If my interpretation is flawed I would love to understand why and fix it.
I think the issue with your interpretation is that they didn't argue any of that, because they stopped at the question of standing. And the reason there was no standing is that there wasn't sufficiently clear evidence that the government actually was coercing the providers.
The core of the whole problem is that these firms really didn't need much coercion. They were (still are) stuffed with activist types who were pretty much waiting for instructions from the "deep state". In that case it's quite hard to disentangle to what extent it's the government at fault vs the culture.
OK - I went and looked up what standing means in the law. It's confusing because of the three necessary elements (injury, cause, and redressability), it seems that the first two require the courts to answer questions of "merit." But the opinion says "we do not reach the merits" and "We begin—and end—with standing" - and then there is a detailed discussion of whether or not the causal chain was valid. Didn't the Fifth Circuit establish that the government caused the injury? And SCOTUS doesn't overrule on that basis? Or am I conflating "facts" and "merit"? Like I said - I'm not a lawyer. I'll do some more research. Thanks for your replies.
That’s the level Id like to see. “Standing” and other concepts that end up neutering the otherwise common sense interpretations of things is managerialism in its finest form. WRT to the pandemic, it would seem that everyone who got vaccinated and wore a mask and kept their kids out of school has standing.
This is backwards. Maybe I should write a proper post about this on my own Substack.
The essence of managerialism isn't rule following. The managerial regime may claim to be defined by a "rules based international order" but this is mere puffery; anyone who tests this claim will immediately find endless examples where regime members are allowed to publicly flout the rules with no consequences whatsoever, and where people who threaten it immediately have the book thrown at them. It is rule by law, not rule of law.
This Supreme Court ruling is a setback for free speech, BUT it is not managerial regime-ism as long as the rules are applied evenly. Standing is a critical concept for any society that wishes to constrain judges and empower politicians, which is a very anti-managerial thing to do. The current Supreme Court is making a lot of judgements and it seems to this foreigner that they are making winners and losers on both sides of the ideological aisle, you would need to present some clear evidence that they are enforcing standing rules selectively.
This case specifically is neuralgic because the question of standing is ambiguous, and it's easy to suspect it's ambiguous because the federal government has successfully found a workaround for the constitution. Unfortunately it's not actually the Supreme Court's job to patch up the constitution when workarounds are found, it's the job of Congress. Again this arrangement is a bulwark against managerialism.
Keep going, I am interested, not sure that you’ve convinced me yet, but I’d like to hear more. In this case the “standing” worked just like one expects in the managerial regime, it protects the interests of the managers to “manage democracy” as NS wrote about so brilliantly. Maybe this is an accident or an unintentional result of a nonmanagerial process, but I’d need to know more, because these kinds of rulings are exactly what keeps managers managing. No one has standing to say “hey, the government is restricting the speech of those who disagree with the government”. If no one has standing to say that, than I don’t even know what standing means. There is this need to prove harm, so the government can interfere with the flow of information that isn’t harmful who gets to decide that? I don’t know because apparently you have to prove that you were harmed (by proving standing) before you can prove that you were harmed. Perfect!
This is one of the very core and very old debates that separates left and right, for what it's worth. See Thomas Sowell's discussion in his book, Conflict of Visions.
Any genuinely neutral system will sometimes reach outcomes you disapprove of. Traditionally the left lacks patience with such outcomes and will demand that someone (we might call them a manager) uses their personal judgement to override the outcome of that system. They are a fan of judicial activism for this reason. The right traditionally prefer to accept bad outcomes of a system as inevitable, and preferable to rule of the arbitrary whims of empowered managers. Their preferred fix is to find a better system rather than empower managerial discretion. If no better system can be found then they prefer to take the collateral damage.
Standing is a classical part of the common law system. As I explain in other comments, it's a common sense rule and required to stop the legal system becoming abusive / being abused. Like all such systems there are times when it may yield outcomes that are correct or fair - on the system's own terms at least - but which are undesirable in the wider political context.
It is ironic and speaks to the depths of the challenges which lie ahead that even here, on a forum that revolves around analysis of the managerial regime, commenters rage against the workings of a system and demand to know why a manager of some sort didn't dispose of that system in order to achieve a better outcome.
The problem here is not the Supreme Court or the concept of standing. Both appear to be working as designed. The actual problem here is that the First Amendment stops the government from restricting speech, but it's not obvious that it stops the government asking/suggesting/ambiently encouraging eager-to-please fellow travelers to do it. If they succeed in the latter then it's not the government doing the forbidding, and the First Amendment doesn't apply. In other words, the Constitution is written for a world as the founding fathers saw it - in which a printing press is relatively easy to obtain but also easy for government agents to find and destroy, and in which the primary antagonist was the King. In such a world if someone wants to "speak" it's only really the government that can stop them. Alas, expectations change. The world of the 21st century still has printing presses, in fact much cheaper and faster machines than America's founders could have ever imagined. But our expectations are now much higher: we are no longer content with privately owned printing hardware, and instead wish to speak using online services created and run by a tiny number of non-governmental Managers™.
This is no mere technical problem! Almost immediately you get into deeply thorny questions. If Elon Musk bans you from X because you insulted him, this is clearly not a First Amendment violation. He paid for the platform, so he can kick you off it even if it puts your political speech at a disadvantage. Same goes for the previous CEO of Twitter too. What if you didn't insult them, but got banned for "misinformation"? Still not the government's fault. What if the government is demanding that Someone Rid Me Of That Turbulent Priest? Well, technically Twitter could ignore them. Or could they? Where is the line crossed between asking nicely and coercion?
All these are very ambiguous and difficult questions. It won't surprise me if the Supreme Court does in fact rule on this question at some point, and it also won't surprise me if they give a ruling that pleases you. But for them to get to that point they need a case where the government has unambiguously pressured a private sector operator to restrict political speech. If they don't have such a case they bend the rules and give the left a justified reason for attacking them (not that such a reason is needed for the left itself, but the centrists are what matters here). Berenson's case appears to meet that bar; this other one did not.
This is a great comment/post. Thank you. (Also thank you for your earlier comment on standing as a general legal principle.) I need to think through this more. Two quick reactions though.
First, the observation that the first amendment was conceived in an era where the means for "injury" were narrower (seize/destroy printing presses, the primary means for free speech or simply imprison/harass the speaker) means that "not abridging speech" doesn't map as neatly to a world where the government is massively more involved in the management of risk and social services - think the CDC.
Second, assuming for the sake of argument that the government has a legitimate interest in managing information flow, is there a legislative cure? In some opinions/dissents I've read the legislative flaw will be called out in general terms (Scalia used to do this a lot, and I vaguely remember Roberts writing something about the SC not having the job of "saving the people from the consequence of their legislators' action"). I might have to read Murthy again but I son;t remember that, especially since the opinion seems to suppose a generally benign role for the government.
Anyway - thanks again. I'm not interested in arguing for the results I prefer; anybody can do that. I'm trying to see - contra N.S. Lyons - if the constitution can still act as an authentic limitation on the power of the USG or if that ship really has sailed.
Thanks! Yes write on this!
The duty of a true patriot is to protect his country from its Government
Thomas Paine.
Always a constitutional conservative, I never thought that would be considered extremist. Indeed, that document supported diversity and inclusion from the get go. The mistake was never in the document but in our failure to honor it.
Now, it has been picked apart not for what it allows, but for the minutiae it purposely fails to address. That was the protected freedom to make and find your place in America. Now, your explicit goals must be yours by right, preferably at the expense of those who failed to do so in the past. Hardly a document that serves all, but a smorgasbord served by some for invited guests.
Our nation is gone, our culture rejected, our raison d'etre destroyed. We can't go back. So, what now? Start over, I guess. Let us man the barricades and make it so!
You are so sadly, right....
I cannot count the number of conversations I have had with practicing lawyers who seem to have literally no idea what the constitution does and what the Supreme Court is for. It's bizarre. They think SCOTUS is just another legislative branch in which the constitution operates as a shadow statute, with the "consequences" of SC decisions the only criteria which matter in assessing them. These are intelligent people who have made "the Law" their vocation, and have no idea what it is.
“The affectation of an “extremely untimely” Buckleyan conservativism dedicated to losing with gallantry is doubtless pleasant in the moment, but is ultimately suicidal.”
100% on 🎯 Wonderful response, thank you for a great essay.
Three considerable "tragedies" related to U.S. conservatism that figure into this discussion:
1) When Russell Kirk died in 1994 no one picked up the Burkean conservative torch.
2) We mostly ignored Christopher Lasch, even when he was speaking directly to us.
3) Roger Scruton never got enough attention among U.S. conservatives.
Can you place these three figures in the context of Charles Kesler's original article? What do Kirk, Lasch and Scruton articulate that we have now lost?
I was thinking more about the general observation that the U.S. right has never really had the equivalent of a "Red Tory" tradition, and that such thinkers as Kirk and Scruton were marginalized by the ascendancy of the neo-conservatives in the 80's. Lasch was a man of the Left, but one who saw value in conservatives' support for the family, traditional education, religion, etc., and attempted to get the right to see that market fundamentalism subverted these things.
My belief is that the American right took a wrong turn in the 80's and what we're seeing today is in many ways a result of that turn. The work of men like the aforementioned, if it would have had more attention paid to it, might have provided some insights that would have kept the right on a more balanced track: concerns about an overreaching foreign policy, the rise of consumerism/commercialization, the decline of rural life and family farming, centralization and the rise of the bureaucracy, etc. These are things that have negatively affected the country in the past 30-40 years but which the main currents on the U.S. right have been either silent on or have actually contributed to the problems.
There is a lot to pick from in both Kirk and Scruton, but re Lasch I'd refer readers to his great First Things essay from 1990, "Conservatism Against Itself."
I would include Pat Buchanan in that list.
In retrospect during my lifetime we focused much too much on the external Soviet threat and not nearly enough on the internal “fifth column” threat. We are beaten but unbowed. Stand ready.
Indeed. As an entity, we defeated Soviet Russia. But the real enemy was never the land or its people... McCarthy was right.
Mainstream conservatism reminds me of WWI cavalry charges against machine guns, with the generals in chateaus well behind the lines.
Ouch.
I generally like to read things that cause me irritation in opposition to what I think I know. The irritation motivates me to dig deeper in either solidifying what I think I know or changing what I think I know.
This piece is the exceptional exception. I do not possess the capability to articulate like N.S. Lyons, but I could have written a much rougher version of exactly this. It isn't at all conspiratorial, although for me it started that way over a decade ago as I grew a sense for what was happening as a major consumer of news and information... the Regime is real. It is the only real existential threat to the world's humanity.
Previously I have been quite depressed that I was a lonely voice shouting at the wall about these things. However, there is movement and progress that indicates the people are waking up from their campus and social media brainwashing. There seems to be a light forming at the end of a tunnel.
But there is an ugly requirement if we are to leverage the shift and fix what is broken. We cannot allow the any of the old guard conservatives holding their old views, nor certainly any of those that embraced the radical left, to achieve amnesty in their PR campaign to suddenly oppose all those things they had weaponized in support of the Regime. Even today Blackrock CEO Larry Flint is on a PR Campaign to distance himself from the Regime's Democrat Party after being one of their generals.
We must remember what these people did and make sure that their power is canceled just has they have exploited their power to cancel the voice of regular citizens.
N.S. Lyons has hit the nail right on the head again. I agree that the managerial/professional elite rejects the spirit of bourgeois republicanism and wishes for a governing structure where all power and privilege flow from the institutions they control. But what "time" is it?
N.S. seeks to wake up conservatives to understand their true nature. Perhaps you think you are a conservative, but you are either a shame-faced progressive or a counterrevolutionary! Unfortunately, the intellectual grounding for counter-revolution has yet to materialize in the consciousness of the "masses". The masses in fact do not know what time it is because no one really knows how close we are to a tipping point. Like edging along a narrow mountain path, it sometimes feels like it would be better to just jump and relive the anxiety, but where to jump?
Speaking only for myself, I'm happy to accept the label reactionary or counterrevolutionary. For me "conservative" is a dirty word that implies smug intellectual dishonesty. Philistine conservatism occupies the headspace among the masses where counterrevolutionary consciousness could grow, but like weeds in a garden conservatism chokes off its growth. What delays the counterrevolution is not the institutions, state and otherwise that oppose us, but rather the intellectual confusion called conservatism.
Imperialism (spreading democracy) and its domestic reflection the totalizing state (equity, etc.) ally with conservative voices to maintain the status quo by confounding the health of the nation with the health of the state. We know that the health of the state is war, but what is the health of the nation?
I'll offer my own half-baked opinion. The health of our nation is its memory. Especially the memory of our better times in years long past. As days turn into decades those memories begin to fade. Eventually they will be gone.
Exactly right. We must find ways to fight back. One way is to pay attention to and support Alex Berenson's Supreme Court case against the Biden administration for trying to silence him.
https://alexberenson.substack.com
Thank you. I just subscribed.
Read his China convergence piece first, it’s a master-work.
We live in deeply sobering times.
I try my best to only post Substack comments which express more or less fully formed thoughts. At the very least, it is always my intention to move the conversation forward in some way or some direction. There's not much value in emoting. But today I am gong to make an exception. This is a report on the psyche of one person: me.
The prospect of abandoning faith in the primarily constitutional framework for American self-governance, which seems from the historical perch of 2024 to have been indispensable to the success of the American experiment, fills me with something I can only characterize as dread. Lyons recently confronted this issue directly ("The Constitution Won't Save Us") - an unsettling challenge at the least. After reading Murthy v. Missouri this morning I find myself feeling almost sick.
Was the world always this way? Has the future always threatened to cleave from the past so radically, held on by the most tenuous of threads? We did have a Civil War. It's been chaotic before. Maybe. Jonah Goldberg once wrote that conservatism is the "temperament of muddling through" (or something close to that). It's a lot easier to embrace "muddling through" as a coherent political program when the whole experiment doesn't look like it's disintegrating. I don't know what to think. It's beyond disturbing.
That sums it up. Succinct, no B.S., clear, and devastating to the Old Guard.
It needed to be dismissive. We've allowed these people to run on too long now. They've done nothing, they speak up for nothing, they have no stomach for the population. We are all living in a prison of a sort. The doors are unlocked but no one is yet ready to turn the handle. The time is yesterday.