October 23, 2023

Justices Will Hear Biden v. Free Speech

The Supreme Court has decided to hear Missouri v. Biden, a government censorship case with massive implications for liberty.

Beware of governments bearing emergencies. That’s the lesson of Missouri v. Biden, a landmark legal case that has made its way to the Supreme Court and that has profound ramifications for the future of free speech.

At issue is whether the Constitution permits the federal government to be the ultimate fact-checker — and thus the ultimate decider of which speech is permissible and which speech is forbidden.

Why does this matter, and why might we be a bit skeptical of the government’s ability to act as an unbiased separator of truth from falsehood?

To be sure, it doesn’t matter to those who trust the government’s recent history in such matters. But to those of you who think, for example, that the government’s 2020 “Gang of 51” letter amounted to decisive election interference on behalf of Joe Biden and against Donald Trump; and to those of you who are alarmed by the government’s role in suppressing news and information about critical pandemic-related matters such as masking, vaccinations, lockdowns, and the laboratory origin of the coronavirus, well, you might want to pay attention to what the Supreme Court says and does regarding Missouri v. Biden in the days and weeks ahead. As the New York Post reports:

The Supreme Court said Friday it would hear arguments in a bombshell case in which lower courts have ruled that the Biden administration likely violated the First Amendment by leaning on social media companies to yank content the White House deemed false or misleading.

In July, US District Judge Terry Doughty, an appointee of former President Donald Trump, barred numerous executive branch officials from contacting social media companies due to collusion and censorship concerns.

As Judge Doughty rightly noted in his blistering opinion: “The right to free speech is not a member of any political party and does not hold any political ideology. It is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”

Again, you can’t trust the government to decide which speech is factually permissible and which speech isn’t. And if you’re foolish enough to trust the government, you’d best buckle up for the censorship you deserve — a censorship that will be emboldened by any ruling that doesn’t uphold Doughty’s exquisitely appropriate July 4th ruling that the Biden administration had perpetrated “arguably the most massive attack against free speech in United States history.”

The problem is that a government fearful of free speech will work tirelessly for excuses to censor it. “If human nature and history teaches anything,” wrote Doughty, who quoted Justice Neil Gorsuch, “it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” Exactly so. Beware the government that says it must trample your constitutional rights for your own good, or for the public good.

Judge Doughty, for one, has already made his position clear: The government “does not have the right to determine the truth.” Unfortunately, the Supreme Court has stayed Doughty’s ruling until it decides the case — which means that the Biden administration can feel free to continue making mischief and colluding with Big Tech to censor news and opinion it deems inconvenient or inappropriate.

Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas favored rejecting the Biden administration’s emergency appeal and letting Judge Doughty’s order stand. In a scathing dissent joined by Thomas and Gorsuch, Alito opined: “At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”

Most unfortunate indeed. One wonders: Where were the other “conservative” justices during all this? Where was Justice Brett Kavanaugh? Where was Justice Amy Coney Barrett? Where was Chief Justice John- … er, never mind.

As our Nate Jackson wrote in September: “Assuming the case is appealed, here’s hoping the Supreme Court finishes that wall. The Founding Fathers, architects of the First Amendment and defenders of the very idea of free speech, would be appalled to see the lengths to which the censors now go to silence political debate in what should be a free country.”

Or, as your humble correspondent put it back in April: If you trust your government, you’re either a Democrat or a sucker. Or both.

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