If you believe that the government is pressuring bookstores to remove your book from their shelves and you want to get an injunction to stop this, you would need to demonstrate four things:
- Traceability of past injuries: Show that bookstores have previously removed your books due to government pressure, not just because they made an independent decision to do so.
- Substantial risk of future injury: Prove that the government is likely to continue pressuring bookstores in a way that harms you in the future.
- Redressability: Show that issuing the injunction would prevent harm because bookstores, freed from government pressure, would likely keep your books on their shelves.
- Merits: Demonstrate that the government’s pressure on bookstores violates the First Amendment by coercing them rather than persuading them.
It is important to note that past injuries are seen as predictors of future injuries, as emphasized in a recent court case. If you can establish these points, you may succeed in your case, similar to previous cases such as Bantam Books, Inc. v. Sullivan and NRA v. Vullo.
However, in a recent case, Murthy v. Missouri, the Court did not reach a conclusion on whether the government unconstitutionally pressured social media platforms to remove posts. The majority rejected the case on standing grounds, citing issues related to past injuries, future risk of harm, and redressability.
The Court’s decision in Murthy raises questions about when government pressure crosses the line into unconstitutional coercion, but does not significantly alter existing First Amendment law.
The dissenters in the case, consisting of Justice Alito, Justices Thomas, and Gorsuch, disagreed with the majority on the issue of government pressure on social media platforms. They believed that the government had unconstitutionally pressured the platforms, a point that the majority did not address.
The question of whether the First Amendment prohibits government involvement in the decision-making processes of platforms, bookstores, newspapers, and other entities remains unresolved. The Fifth Circuit previously ruled that it does, but that decision has been vacated, leaving the issue open for interpretation. While the dissenters did not discuss this aspect, certain Court precedents suggest that such government “entanglement” or “encouragement” may warrant constitutional scrutiny.
Additionally, it is uncertain whether the government’s actions in the case violated the First Amendment rights of some speakers, even if not the plaintiffs involved in the case. The majority found that many of the District Court’s findings on this matter were “clearly erroneous,” but this does not necessarily address all claims of unconstitutional coercion.
The resolution of these First Amendment issues may be determined in future cases, but this particular case does not provide a definitive answer.
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