Andrew Napolitano told Newsmax on Monday he first was optimistic about the U.S. Supreme Court upholding a lower court's ruling that the Biden administration violated the First Amendment by colluding with social media companies to censor content.
But the former New Jersey Superior Court judge told "Carl Higbie FRONTLINE" that after hearing oral arguments earlier in the day, he is convinced Chief Justice John Roberts and Justice Brett Kavanaugh will side with the court's three liberal justices to side with the federal government.
The Supreme Court is hearing the Biden administration's appeal of a Fifth Circuit Court of Appeals in New Orleans ruling that upheld a district court's decision in Murthy v. Missouri. The lower court ruled in favor of the Republican attorneys general of Missouri and Louisiana and five individual plaintiffs, finding that social media posts on Facebook, YouTube, and X related to COVID-19 and the 2020 election were removed or downgraded at the government's direction.
The appeals court upheld the decision but did narrow the lower-court's ruling by limiting communication to a smaller group of agencies, including the White House, the Surgeon General, the Centers for Disease Control and Prevention, and the FBI.
"I was very optimistic about this case this morning," Napolitano said. "I am not optimistic after reading the transcript of the oral arguments. The Chief Justice and Justice Kavanaugh sound like they've gone over to the other side and are going to agree with the three liberal justices. It's going to be 5 to 4 upholding this.
"How are they going to uphold it? They're going to say – they're not going to rule on the First Amendment, in my opinion – they're going to say that the attorneys general and the several individual plaintiffs who each of those attorneys general from Louisiana and Missouri got as plaintiffs do not have standing to sue."
Napolitano said the High Court will be kicking the can down the road, allowing the federal government to return to "using a carrot or a stick [approach] to Big Tech. Put this on, and we'll go easy on you. Don't cut this out, and we'll start investigating you."
"That's not the way the First Amendment is supposed to work," Napolitano said "The whole purpose of the First Amendment is to keep the government out of the business of speech, period. No exceptions.
"The American people don't need the government to tell them what is right and what is wrong with respect to speech. The First Amendment decided that in 1789."
Napolitano said even though the content the government colluded with Big Tech to suppress turned out to be true – for example, the material in Hunter Biden's laptop – will have no bearing on the case.
"The Supreme Court is concerned with governmental power," he said. "Justice Kavanaugh used to work in the Bush administration. He's siding with the executive branch. The Chief Justice sees an opportunity to show his ability to join the liberals in the court. He's siding with them.
"It's a disaster. What started out as a terrific affirmation of free speech in the district court and the circuit court [of appeals] is now being destroyed in the Supreme Court. I could be wrong but that's how I read the tea leaves."
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Michael Katz ✉
Michael Katz is a Newsmax reporter with more than 30 years of experience reporting and editing on news, culture, and politics.
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