Justice Jackson Upset That the First Amendment Might Stop the Government From Suppressing Free Speech
The Supreme Court heard arguments Tuesday in a potentially groundbreaking case concerning the ability of the federal government to coerce social media platforms into banning opinions and users who disagreed with a government policy. The case is called Murthy v. Missouri, formerly known as Biden v. Missouri.
BACKGROUND:
Free Speech Wins: 5th Circuit Upholds Heart of Injunction Against Biden Administration
Victory for Free Speech: Federal Judge’s Ruling Places Government Censorship in the Crosshairs
Court Denies Motion to Dismiss Censorship Case Against Fauci and Other Biden Official
FBI and White House Slapped Down By Judge in Major Censorship Case
The court seemed skeptical of the arguments proffered by Missouri and Louisiana.
A majority of Supreme Court justices on Monday appeared highly skeptical about claims the Biden administration crossed the line from persuasion to coercion when it told social media platforms to remove problematic content.
At issue is an injunction imposed by a federal judge, currently on hold, that would limit contacts between government officials and social media companies on a wide range of issues.
During oral arguments, justices across the ideological spectrum questioned whether the conduct of government officials was unlawful and whether plaintiffs that brought the lawsuit could even show they were directly harmed. Among the issues raised was the lack of evidence that government officials threatened punitive action if the social media companies failed to cooperate.
There was this statement in her questioning of Louisiana Solicitor General Benjamin Aguiñaga.
JACKSON: My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time period. I mean, what would you have the government do? I've heard you say a couple of times that the government can post its own speech, but in my hypothetical, "Kids, this is not safe, don't do it," is not going to get it done, so I guess some might say that the government has a duty to take steps to protect the citizens of this country. You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So can you help me? Because I’m really worried about that. Because you’ve got the First Amendment operating in an environment of threatening circumstances, from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems.
Then there was this one.
JACKSON: So whether or not the government can do this, this is something I took up with Mr. [Missouri Principal Deputy Solicitor General Brian] Fletcher, this depends on the application of our First Amendment jurisprudence. And there may be circumstances in which the government could prohibit certain speech on the internet or otherwise. Do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest and how the government has tailored its regulation?
AGUIÑAGA: Certainly, Your Honor, at the end of every First Amendment analysis you'll have this strict scrutiny framework, which, in some national security hypos [hypotheticals], for example, the government may well be able to demonstrate compelling interest, may well be able to demonstrate...
JACKSON: Alright, so not every situation in which the government engages in conduct that ultimately has some effect on free...on speech necessarily becomes a First Amendment violation, correct?
AGUIÑAGA: It may not necessarily, Your Honor, I guess the top line question I would ask is has the government set out to abridge the freedom of speech. In this case, you see that time and time again because if you control...
JACKSON: That's not the test for First Amendment violation.
AGUIÑAGA: Yes, this is from the plain text of the First Amendment, right?
JACKSON: I understand but we have a test for a determination of whether or not the First Amendment is actually violated. In certain situations the government can actually that speech be suppressed if there is compelling interest, right?
AGUIÑAGA: It can, Your Honor, and I guess that what I would say is that the courts below never got to strict scrutiny because the government never raised it, this has never been litigated. The question, in this case, is whether at the front end the government itself has undertaken...
JACKSON: Coercion is a state action, right? That's the question in this...
AGUIÑAGA: And I would urge the Court to address the state action issue just as you addressed it in Bantam Books. You used that term four times in Bantam Books.
JACKSON: What it seems like an extremely expansive argument, I must say.
At another point, she opines:
“I’m interested in your view that the context doesn’t change the First Amendment principles,” Jackson said. “I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech, but not necessarily a total prohibition when you’re talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of a once-in-a-lifetime pandemic.”
If the entire federal government can't make its voice heard and must rely on suppressing free speech, then it's entirely possible that government doesn't deserve to exist. By the same token, just because the government has something useful to say—and I'll contend that during COVID, federal speech did much more damage to more people than non-government speech—that doesn't imply the government has the right to stomp on other speech.
The trial and appeals court records show that Biden functionaries were intimately involved in pointing out information and accounts to social media platforms for suppression, and those platforms complied. If this is allowed to stand, the government will always find points of view that it wants to suppress. That might be on illegal immigration, gun rights, or myriad other issues. Each time, the government will make the same claim that it has a compelling interest in everyone hearing its position without challenge or contradiction.
It is astonishing that a Supreme Court Justice, no matter their views on the intricacies of this case, could take the position that we must protect the government's right to suppress free speech. As Louisiana Solicitor General Benjamin Aguiñaga said, the prohibition on the government's ability to abridge speech "is from the plain text of the First Amendment."
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