How Many Challenges Can 1st Amendment Withstand?

Our right to free speech — guaranteed by the First Amendment to the Constitution — is under attack again, this time from the U.S. Supreme Court, the one place that should have the utmost reverence for the first and most important right in our Bill of Rights.

In SCOTUS oral arguments last week, several justices seemed ready to let government censor online speech. This would abandon two centuries of American history and decades of high-court rulings that made the First Amendment all but impervious to challenge.

In the case argued on Monday, March 17, originally titled Missouri v. Biden and now known as Murthy v. Missouri, the state attorneys general of Missouri and Louisiana sued the federal government for what a federal judge later called the biggest government violation of our First Amendment rights in America’s history.

This emerged out of the Twitter Files exposé. The FBI, CIA, Department of Homeland Security, and dozens of other agencies pressured Twitter, Facebook and other social media platforms to silence the voices of thousands of conservatives.

This violated the First Amendment freedom of the people posting this content, and of millions of Americans who had the right to hear these banned voices. So, on July 4^th of last year, U.S. District Court Judge Terry A. Doughty in Louisiana issued a broad ban on most government contact with social media platforms.

The administration appealed, and a three-judge panel on the Fifth Circuit Court of Appeals narrowed the scope of Judge Doughty’s ban, but kept some of it in place.

So, Justice appealed to the Supremes for a stay in that order and got it — hey, government wants to keep censoring free speech through the 2024 election. Now, SCOTUS takes up the case, maybe for worse, based on the hearing last week.

A C-SPAN recording of the live court hearing is here, and a transcript is here. I talk more about this case on my podcast, “What’s Bugging Me.”

The newer members of the High Court seem to have less regard for the First Amendment. The newest justice, Ketanji Brown Jackson, at one point tells the lawyer for Missouri, regarding government power:

“(Y)ou’re not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so.”

Actually, this happens almost never in free speech cases, and certainly it never happened in the thousands of times the government had the platforms muzzle conservative views, the central matter in this case. This was rampant censorship on a massive scale.

If government wants to punish the leaker of that report afterward, fine, but government cannot ban the publishing pre-emptively. No prior restraint on speech: law of the land.

Justice Elena Kagan, a liberal Obama appointee, said that in her previous job as a government lawyer, “I’ve had some experience encouraging press to suppress their own speech. You just wrote a bad editorial. Here are five reasons you shouldn’t write another one. … I mean, this happens literally thousands of times a day in the federal government.”

I sincerely doubt this.

Even Justice Brett Kavanaugh, the supposed conservative appointed by President Trump, seemed to side with government against those who were silenced, saying that he, too, previously had pressured publications. As he told the government lawyer in this case:

“So, I understand your key legal argument is that coercion does not encompass significant encouragement or entanglement, and that it would be a mistake to so conclude because traditional everyday communications would be deemed problematic.”

“Exactly right,” Deputy Solicitor General Brian Fletcher enthused.

Chief Justice John Roberts, the equivocating “conservative” appointed by George W. Bush, then steps up — and he agrees with liberal Kagan. He implies that, because so many different government agencies were pounding on the platforms, this “diluted” any notion of coercion.

Roberts:

“I was just going to say, first, I have no experience coercing anybody.” Yucks all around. “But, second, I mean, the government is not monolithic, either. I suspect, when there’s pressure put on one of the platforms or certainly one of the other media outlets, they have people they go to, probably in the government … It’s not monolithic. And that has to dilute the concept of coercion significantly, doesn’t it?”

“You Honor, I’m not sure I agree with that,” responds J. Benjamin Aguinaga, solicitor general for Louisiana. Whether you call it coercion or encouragement, “if the government is attempting to abridge the free speech rights of a third party, that has to be unconstitutional because that falls within the plain text of the First Amendment.”

Bingo, Benjamin.