Daily Archives: March 22, 2024

The Supreme Court just heard arguments in Murthy v. Missouri, a case that raises important First Amendment issues and exposes government censorship efforts.

Last October, when considering a lower court order prohibiting further censorship, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch described the case as a coordinated campaign by high-level federal officials to suppress the expression of disfavored views on important public issues. Indeed, the case highlights troubling tactics of the Biden administration that are better suited to the Ministry of Truth in George Orwells fictional totalitarian state, Oceania, in his frighteningly prescient novel, 1984.

There is little dispute about the facts of the case. In essence, Biden administration officials pressured or coerced social media companies to censor posts that challenged the administrations position on pandemic lockdowns, the safety of vaccines, the COVID19 lab-leak theory, election fraud, Hunter Bidens laptop, and a host of other issues.Court records show that the White House specifically targeted COVID skeptics Alex Berenson, Tucker Carlson, and Robert F. Kennedy Jr.

Messages demonstrate the White House demanded that certain posts be taken down ASAP and suggested that bi-weekly meetings with social media companies would help in suppressing disinformation. If a company pushed back, administration officials threatened anti-trust action and other forms of liability. Bidens team even went so far as to claim Facebook and other platforms were killing people by not aggressively censoring certain information.

After Bidens comments, Facebook deplatformed multiple users and began providing detailed reports of its efforts to obey White House directives. Ultimately, companies accepted the Centers for Disease Control and Prevention as the final arbiter on what was acceptable COVID-19 information and what was disinformation.

Court records show that Facebook content-mediation officials would contact [the CDC] to determine whether statements made on Facebook were true or false, and Facebook would remove and/or censor claims the CDC itself said were false.

The FBI also got in on the action. The FBI averred to the social media companies that it was combatting foreign influence. Instead, it was targeting domestic posts promoting stronger border security measures or the Second Amendment. In the case of Hunter Bidens laptop, the FBI warned of the dangers of foreign hackers and data dumpers despite knowing that the laptop and its contents were real.

Rather than apologizing to the public for its censorship activities, the Biden administration is defending them.

In oral arguments before the Supreme Court this week, the Biden administration justified its actions by arguing that the social media platforms are private entities that ultimately chose to remove posts or deplatform people. The First Amendment, which protects free speech, applies only to government actors. Hence, the administration denied that its persuasion and suggestions were the proximate cause of the censorship. So long as the government seeks to inform and persuade rather than to compel, the administration argued in its brief submitted to the court, its speech poses no First Amendment concern even if government officials state their views in strong terms, and even if private actors change their speech or conduct in response.

Under the law, the government cannot evade responsibility when it has significantly encouraged an action. In other words, the government may not meddle in the editorial decisions of the platforms or direct them on how to exercise editorial discretion. Thus, the question will come down to whether the government was just seeking to inform the social media companies or whether the government compelled or coerced action (or at least meaningfully controlled the private actors).

If nothing else, the facts in the case are ugly and show a gross abuse of power by federal officials.

No matter what the outcome, the plaintiffs two states and various people affected by the governments censorship campaign deserve high praise for bringing these matters to light. The case record demonstrates the heavy-handed tactics and arrogance of administration officials in suppressing speech.

In his opinion in Whitney v. California (1927), the great Supreme Court Justice Louis Brandeis observed that the remedy for allegedly false information and viewpoints is more speech, not enforced silence. The Biden administration enjoys the largest bully pulpit in the nation but declined to combat opposing opinions with more speech. It chose threats and hectoring in an effort to enforce silence.

Hopefully, the Supreme Court will rebuke the government for this conduct. Otherwise, Oceania might be a better name for todays America.

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William J. Watkins, Jr. is a research fellow at the Independent Institute and the author of Crossroads for Liberty: Recovering the Anti-Federalist Values of Americas First Constitution

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The First Amendment is under attack in Americas Oceania - Washington Examiner

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Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Caledonian-Record

During the COVID-19 pandemic, the federal government strong-armed Big Tech companies into censoring as disinformation Americans true experiences while effectively mandating government propaganda, which itself turned out to be misinformation.

The Supreme Court is currently considering whether that strategy violated the First Amendment.

Supreme Court Justice Ketanji Brown Jackson suggested during oral arguments Monday that the First Amendment should not be allowed to hamstring the government amid a crisis.

Jackson asked J. Benjamin Aguiaga, the solicitor general of Louisiana, a rather revealing question about the issue.

So, my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods, Jackson said.

The Supreme Court justice presented an extremely unlikely hypothetical that most American young people would find very insulting. She presented a scenario in which young people took cellphone video of their peers jumping out of windows, and that trend went viral on social media (preposterous), Big Tech companies failed to take action on their own (very unlikely), and the government wanted to stop it.

She asked Aguiaga, What would you have the government do? Ive heard you say a couple times that the government can post its own speech, but in my hypothetical, Kids, this is not safe, dont do it, is not going to get it done.

So, I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information, Jackson said. Im really worried about that because youve got the First Amendment operating in an environment of threatening circumstances from the governments perspective, and youre saying that the government cant interact with the source of those problems.

I understand that instinct, Aguiaga replied. Our position is not that the government cant interact with the platforms there but the way they do that has to be in compliance with the First Amendment.

Jackson suggested it would be unjust for the First Amendment to limit the governments actions in addressing a hypothetical crisis, but the First Amendment expressly exists in order to hamstring the federal government.

As Rep. Jim Jordan, R-Ohio, said in response to Jacksons concern about the First Amendment hamstringing the federal government, thats what its supposed to do, for goodness sake.

The amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The amendment does not include a crisis-exemption clause allowing the government to trample on free speech if the president declares a national emergency. If it did, President Joe Biden might declare a national emergency on climate and strong-arm Big Tech into censoring opposition to the climate alarmist narrative. He might declare a national emergency on the nonexistent epidemic of violence against transgender people, and pressure social media to ban any disagreement with gender ideology.

Big Tech platforms already censor conservative speech on those issues, but it could become far worse.

Missouri v. Murthy presents an excellent illustration.

The plaintiffs in the caseMissouri and Louisiana, represented by state Attorneys General Andrew Bailey and Liz Murrill, respectively; doctors who spoke outagainst the COVID-19 mandates, such as Martin Kulldorff, Jayanta Bhattacharya, and Aaron Kheriaty; Gateway Pundit founder Jim Hoft; and anti-lockdown advocate and Health Freedom Louisiana Co-Director Jill Hinesallege that the Biden administration suppressed conservative-leaning free speech on the Hunter Biden laptop story ahead of the 2020 presidential election; on COVID-19 issues, including its origin, masks, lockdowns, and vaccines; on election integrity in the 2020 presidential election; on the security of voting by mail; on the economy; and on Joe Biden himself.

On July 4, federal Judge Terry Doughty in the U.S. District Court for theWestern District of Louisianaissued an injunction barring the Biden administration from pressuring Big Tech to censor Americans.

Doughtys injunction named various federal agenciesincluding theDepartment of Health and Human Services, the National Institute of Allergy and Infectious Diseases (the agency Dr. Anthony Fauci formerly directed), the Centers for Disease Control and Prevention, the FBI, the Department of Justice, and the State Departmentand officials, including HHS Secretary Xavier Becerra, Surgeon General Vivek Murthy, and White House press secretary Karine Jean-Pierre.

The U.S. Court of Appeals for the 5th Circuit narrowed the extent of Doughtys injunction, and the Supreme Court stayed the 5th Circuits order before taking up the case.

The Twitter Files revealed how the process worked: Federal agencies would have frequent meetings with Big Tech companies, warning about misinformation and repeatedly pressuring them to remove or suppress content. Federal agents and politicians occasionally threatened that if the companies did not act, the government would reform Section 230 of the Communications Decency Act, removing legal protections the companies enjoyed.

As Justice Samuel Alito noted, federal officials treated Facebook, Twitter (now X), and other social media companies like their subordinates.

As part of this lawsuit, Bailey unearthed documents in which Facebook told the White House that it suppressed often-true content that might discourage Americans from taking COVID-19 vaccines.

In that context, Jacksons question about the First Amendment hamstringing the government seems particularly alarming. The federal government did not act to suppress speech amid an existential crisis like a world war or a civil war. It acted after good data became available showing that COVID-19 poses a deadly threat to the elderly and those with co-morbidities, and while the government was advocating vaccines for all populations, not just the most vulnerable.

Jacksons question suggests that she wants the government to have more control over speech on social media, even after the abuses this case uncovered.

If the First Amendment is good for anything, it should hamstring the government from silencing Americans in order to push its own propaganda. Jackson, as a sitting Supreme Court justice, should know that.

Then again, if she cant define the word woman, perhaps Americans shouldnt be surprised if she doesnt grasp the fundamental purpose of the First Amendment.

Have an opinion about this article? To sound off, please emailletters@DailySignal.comand well consider publishing your edited remarks in our regular We Hear You feature. Remember to include the URL or headline of the article plus your name and town and/or state.

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Note to Justice Jackson: First Amendment Should Hamstring Biden - Daily Signal

Supreme Court Justice Ketanji Brown Jackson raised concerns that the First Amendment may stand in the way of government censorship in unique times.

In Mondays oral arguments for Murthy v. Missouri, Jackson appeared to be skeptical that the government could not censor social media posts in the most important time periods.

My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods, Jackson said to Louisiana Solicitor General Benjamin Aguiaga.

You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information, Jackson said. So, can you help me? Because Im really worried about that because youve got the First Amendment operating in an environment of threatening circumstances, from the governments perspective, and youre saying that the government cant interact with the source of those problems.

Aguiaga said his view was that the government should intervene in certain situations, but it has to do so by following the First Amendment.

Our position is not that the government cant interact with the platforms there. They can and they should in certain circumstances like that, that present such dangerous issues for society and especially young people, Aguiaga said in response. But the way they do that has to be in compliance with the First Amendment. And I think that means they can give them all the true information that the platform needs and ask to amplify that.

Jackson said a once-in-a-lifetime pandemic or other emergencies would provide grounds for the government to censor social media posts that are misinformative.

Im interested in your view that the context doesnt change the First Amendment principles, she said. I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech, but not necessarily a total prohibition when youre 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.

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Jackson was harshly criticized for her comments, with Rep. Jim Jordan (R-OH) referencing her argument and saying it was literally one of the craziest things Ive ever seen.

That you could have a Supreme Court Justice say that in the oral argument made no sense to me. That is frightening, he added. Because if she really believes that, that is scary where we are heading.

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Ketanji Brown Jackson concerned First Amendment is hamstringing government from censorship - Washington Examiner