March 20, 2024

Big Tech, Biden, and Free Speech at the Supreme Court

The Court will have to decide whether the Biden administration coerced social media companies to censor speech in violation of the First Amendment.

The Fifth Circuit Court of Appeals certainly believed that the Biden administration’s pressure campaign on social media companies violated the First Amendment. That’s why the appellate court essentially barred the administration from continuing to communicate with and thereby coerce those companies to censor users on their platforms.

The case before the U.S. Supreme Court is Murthy v. Missouri, and the question is whether the federal government — in this case, the Biden administration — can pressure social media companies into removing posts from their platforms if said posts are deemed problematic by the government.

On its face, this would seem to be an easy open-and-shut case, with the Biden administration on the losing end, reprimanded for its blatant violation of Americans’ First Amendment free speech protections. However, the oral arguments and the questions posed by the justices seem to suggest a more complicated ruling.

The comment that has dominated the headlines is that of Justice Ketanji Brown Jackson, who seems eager to ensure the government’s power to control information. “My biggest concern,” she said, “is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.”

Uh, yeah. Maybe Jackson is vying to overtake Sonia Sotomayor as the Court’s intellectual lightweight, but the entire Bill of Rights is meant to “hamstring” the government from trampling our God-given rights, even if what we do with those rights is distasteful to coastal elites.

Louisiana Solicitor General Benjamin Aguinaga, a self-declared “purist on the First Amendment,” was challenged by Justice Amy Coney Barrett when she asked if the FBI could push social media companies to remove posts such as those that doxed public officials. “So the FBI can’t make — do you know how often the FBI makes those kinds of calls?”

Aguinaga’s response was to observe that the government had full freedom to voice its concerns publicly and to provide its own views and information. However, the Biden administration sought to silence information and authoritative opinions specifically regarding COVID — about vaccines, social distancing, masking, and the like — that did not follow the administration’s preferred narrative. The Biden administration justified its effort to censor this speech by claiming that it was protecting the public from “misinformation.” But the federal government has no such mandate or constitutional power.

As it turns out, much of the misinformation came from the Biden administration’s government-sanctioned sources, not from the medical experts who voiced their educated objections.

Justice Samuel Alito pressed the Biden administration’s Principal Deputy Solicitor General, Brian Fletcher, by asking how pressuring social media companies to censor is different from pressuring print media companies.

The case seems to hinge on what constitutes “coercion.” While the government may contact social media companies to warn them regarding a disinformation campaign or other nefarious efforts aimed at misleading the public, it can’t force these companies to censor on its behalf.

Again, as Justice Jackson unintentionally but accurately noted, the First Amendment is “hamstringing” the federal government’s effort to control Americans’ free speech. Sadly, Jackson views this as a problem rather than a feature of the Bill of Rights, which protects Americans from government tyranny, even during a pandemic. Her originalist colleagues are unlikely to agree.

How will the Court come down? Given its conservative makeup, we can reasonably expect it to uphold the Fifth Circuit’s ruling. But stranger things have happened.

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