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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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Supreme Court threatens free speech rights in Murthy case

Mar 26

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The Supreme Court recently heard oral arguments in Murthy v. Missouri, a case concerning government communications with social media companies, and whether those communications amount to censorship. The justices seem opposed to the plaintiff’s arguments that the government’s efforts to combat online misinformation about COVID-19 and U.S. elections constituted censorship.

Straight Arrow News contributor Ben Weingarten attended the hearings and emerged deeply concerned about the direction the justices seemed to be taking. Weingarten fears that Americans’ First Amendment rights are under significant threat.

Evidence in Murthy revealed that leading up to the 2020 election, and increasingly thereafter, federal agencies directly and by cut-out cajoled, coerced and colluded with social media platforms to censor wrong-thinking Americans, at the level of millions of posts, on matters ranging from the Hunter Biden laptop story to the integrity of mass mail-in balloting and [the] efficacy of COVID-19 vaccines.

Lower courts found that these efforts likely constituted a massive assault on the First Amendment. The feds, they said, effectively turned Facebook and Twitter into its speech police — state actors whose content moderation efforts violated the Constitution by abridging our speech. So the courts issued a preliminary injunction freezing the speech-policing during the case.

The feds took their case to the Supreme Court. They said restrictions on their ability to press social media companies to censor so-called mis-, dis- and mal-information would irreparably harm them, violating their right to speak and influence the digital public square. They asked the court to bless the fed censorship regime and allow it to persist.

I walked out of oral arguments demoralized that the justices might have bought the government’s anti-free speech pitch. While oral arguments don’t necessarily reflect how the court will come down on a case, the great deference to the government’s position that essentially the bar has to be very high to say the feds converted social media companies into federal speech suppression weapons, shown particularly by Chief Justice Roberts and Justices Kavanaugh and Barrett, the three apparent swing votes here, gives me great pause.

Last week the censorship industrial complex went on trial when the Supreme Court heard oral arguments in the landmark free speech case, Murthy V. Missouri. I had the privilege of attending those arguments. And if what I witnessed is any indication of how the court will rule. I fear our First Amendment may be facing an extinction level event. Evidence and Murthy revealed that leading up to the 2020 election and increasingly thereafter, federal agencies directly and by cut out cajoled, coerced, and colluded with social media platforms to censor wrong thinking Americans at the level of millions of posts on matters ranging from the Hunter Biden laptop story to the integrity of mass mail in balloting and efficacy of COVID-19 vaccines. lower courts found that these efforts likely constituted a massive assault on the First Amendment. The feds they said effectively turn Facebook and Twitter into its speech police state actors whose content moderation efforts violated the Constitution by abridging our speech. So the courts issued a preliminary injunction freezing the speech policing during the case, the Feds took their case to the Supreme Court. They said restrictions on their ability to press social media companies to censor so called miss this and Mao information would irreparably harm them violating their right to speak and influence the Digital Public Square. They asked the court to bless the Fed censorship regime and allow it to persist. I walked out of oral arguments demoralize the justices might have bought the government’s anti free speech pitch. While our arguments don’t necessarily reflect how the court will come down on a case, the great deference to the government’s position, that essentially the bar has to be very high to say the Feds converted social media companies into federal speech suppression weapons, shown particularly by Chief Justice Roberts and justices Cavanaugh and Barrett, the three apparent swing votes here gives me great pause. The feds hinge their case on whether the Biden White House FBI, CDC Surgeon General’s office and DHS sub agency Sissa merely persuaded platforms to censor protected speech, which the Fed say is legal versus coercing them to do so under threat of punishment which the Feds acknowledges illegal. The Fed seemed to dismiss the standard of the lower courts had looked to have significant encouragement. The district court where the case originated, wrote that quote in evaluating significant encouragement, a state may not induce encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish. The plaintiffs wrote in their brief to SCOTUS that the First Amendment does not require a strict showing of explicit coercion but capacious we protect the freedom of speech from any abridging ie diminishing of that freedom. There’s voluminous evidence in the case that the feds constantly badgered the social media companies directly and by proxy to suppress speech flagged offending content and speakers for them to purge asked if they were changing their terms of service and had taken content down and harangue the platform’s privately and publicly to obey with the threat of section 230 reform, antitrust action, and other legal and regulatory weapons in their back pocket. But the justices seem to overlook the smoking guns. The three swing justices particularly seemed unmoved, believing it would create chaos if government officials had to watch what they said to platforms during a crisis, and that their requests aren’t inherently threatening. Chief Justice Roberts indicated his belief that government agencies are not monolithic. And that has to dilute the concept of coercion significantly, doesn’t it in questioning them plaintiffs, Justice Cavanaugh and others noted that government officials harass journalists all the time to take things down or sit on stories, notwithstanding the censored have a social media platform that isn’t defending them standing in between citizen journalists and the government and that citizen journalists aren’t afforded the powers and protections of credentialed ones. Their arguments ignore the slippery slope, that government can come up with an emergency rationale to push nearly anything in violation of our rights, and that government is force. When an agency whether law enforcement, like the FBI is and Murthy or otherwise comes to a business asking it to do X, Y or Z. It does sell with all the power of the most formidable legal mafia in the world. Both parties in their briefs alluded to the line, nice business you’ve got there would be a shame if something happened to it. The difference is that the Fed said the line quote can be a genuine expression of concern or a veiled threat, depending on the delivery. So in other words, you can kiss your first amendment goodbye depending upon the tone in which the government seeks to get it stripped from you. Most troublingly Justice Cavanaugh seem to buy it. The swing justices entertained extreme and irrelevant hypotheticals asking the plaintiffs if government could demand platforms to suppress, ignoring the literally hundreds, if not 1000s of real life examples in front of them of the government pursuing purges of core political speech. During the largely critical questioning the plaintiffs were

represented by Louisiana Solicitor General appears to have been put on the backfoot waiting oral arguments the Solicitor General pleaded for a win even a lesser one with a weaker injunction. I think the most important takeaway, he said is that the court has to say something in our favor on the merits. The government can’t just run rampant pressuring the platform’s to censor private speech. That is what’s at stake. But I’m not confident the Supreme Court convinced Justice Jackson went viral for saying My biggest concern is that you’re the plaintiff’s view has the First Amendment hamstringing the government in significant ways in the most important time periods. In other words, the precise purpose of the First Amendment or comment rightly garsdnered outrage by turning that amendment on its head. But even more outrageous is that her perspective might be held by a majority of the Supreme Court. If it is, we can kiss free speech. Goodbye

 

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