The First Amendment is under threat like never before

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‘Your view has the First Amendment hamstringing the federal government in significant ways.’ It would be no surprise to hear such disregard for free-speech rights from the Biden administration today. Indeed, under Joe Biden, the US government has established a vast, multi-agency campaign to police content on social-media platforms and to pressure Big Tech to suppress views it dislikes. Last year, a judge declared Biden’s campaign against so-called disinformation to be ‘the most massive attack on free speech in United States history’.

But those words disparaging the First Amendment didn’t come from a Biden apparatchik. Shockingly, they came from a Supreme Court justice, Ketanji Brown Jackson. That is, from a member of the highest court in the land, the body that is tasked with protecting the constitutional rights of Americans, including their First Amendment rights to freedom of expression. ‘Hamstringing the federal government’ from censoring disfavoured views is precisely the point of the First Amendment.

Justice Jackson’s troubling words came earlier this week, as the Supreme Court met to hear oral arguments in Murthy v Missouri (formerly Missouri v Biden). This lawsuit claims that federal-government officials violated the First Amendment rights of certain states (Missouri and Louisiana) and individuals when they pressured social-media companies to remove posts about Covid vaccines, election fraud and other topics. Two lower courts have already ruled for the plaintiffs. In July of last year, US district judge Terry Doughty issued an injunction, requiring the government to cease communicating with social-media companies for the purpose of ‘urging, encouraging, pressuring or inducing’ them to remove or suppress ‘content containing protected free speech’. The Biden government has appealed those lower-court rulings, which is why the case has now landed with the Supreme Court.

Under the First Amendment, the government is generally prohibited from censoring speech it disagrees with. The principle at stake in Murthy v Missouri is that the government should also not be permitted to force private entities to do that work of censorship on its behalf. In other words, the Biden government should not be able to strong-arm Facebook, Google, X and other sites into suppressing political speech or other views that it opposes. Preventing the government from undertaking such indirect, behind-the-scenes censorship of social media is especially important today, as the digital square has become the main forum for public debate.

But according to the twisted logic of the Biden administration, it is the US government’s own speech rights – not the public’s – that are under threat. Solicitor general Elizabeth Prelogar told the court: ‘The government is entitled to speak for itself by sharing information, urging action and participating in debate over issues of great concern to the public.’ That’s true, the government can speak its mind to the media and seek to persuade them of its opinion. But Prelogar’s statement is a distorted, rose-tinted description of what the Biden government’s sprawling censorship regime got up to – its actions have gone far beyond ‘sharing information’, ‘urging action’ and ‘participating in debate’. Indeed, the plaintiffs’ brief presents ample evidence of how the Biden administration crossed the line from persuasion to coercion of social-media companies.

Yet, in this week’s Supreme Court hearing, it appeared that a number of justices were sympathetic to this ‘it’s just speech’ defence put forward by the Biden team. Some justices questioned whether the government officials had done anything unusual when they engaged with social-media companies, noting that there have been robust exchanges between officials and newspapers for decades. ‘I had assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them’, said Justice Brett Kavanaugh.

But the scale and reach of the Biden officials’ anti-disinformation campaign went far beyond the kinds of interactions that government has long had with newspapers. The administration enlisted an array of agencies and officials in its censorship efforts, including the surgeon general, the Centres for Disease Control and Prevention (CDC), the Department of Health and Human Services, Dr Anthony Fauci, the FBI, the Cybersecurity and Infrastructure Security Agency (CISA) and the State Department, among others. While social-media companies are ostensibly private companies, the government established such day-to-day oversight and coordination that it could be argued that they effectively became agents of the state. Previous court hearings established that White House officials held twice-weekly meetings with tech companies. The FBI held weekly meetings and kept records of whether its demands were complied with. The State Department held ‘hundreds of meetings about misinformation’ and systematically flagged ‘huge quantities of First Amendment-protected speech to platforms for censorship’.

In these private meetings, government officials went beyond polite requests, issuing angry demands to the companies. ‘We are gravely concerned that your service is one of the top drivers of vaccine hesitancy – period’, White House aide Rob Flaherty said in a March 2021 email to Facebook. Flaherty also blamed Facebook for the ‘January 6’ riot and said it would be blamed for Covid deaths if it didn’t increase censorship. As Justice Samuel Alito acknowledged at the hearings, the exchanges between officials and the platforms showed the government ‘treating Facebook and these other platforms like they’re subordinates’. President Biden himself aired such admonishments publicly, when he accused the platforms of ‘killing people’ by allowing vaccine-sceptical content.

The most damning evidence of the government crossing the line into coercion were their threats of legal or regulatory retribution that officials made against social-media platforms. On various occasions, Biden administration officials threatened to take antitrust action against Big Tech firms and to remove Section 230, a regulation that prevents tech companies from being sued for user-generated content on their platforms. Former White House press secretary Jen Psaki linked demands to the tech firms to ‘stop amplifying untrustworthy content… especially related to Covid-19, vaccinations and elections’ with the threat of pursuing ‘better privacy protections and a robust antitrust programme’. In another example, surgeon general Vivek Murthy said the ‘urgent threat to public health’ posed by ‘health misinformation’ might warrant ‘legal and regulatory measures’.

For free-speech advocates, the most worrying line of questions in the oral arguments came from Justice Jackson. Not only did she express concern that the First Amendment might ‘hamstring’ the government. She also suggested that there are exceptions to the First Amendment in emergencies, like the Covid pandemic. According to her understanding, the First Amendment does not require ‘a total prohibition’ on government censorship ‘when you’re talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of… a once-in-a-lifetime pandemic’.

Justice Jackson’s notion that it is legally acceptable for the government to coerce social-media companies – to impose censorship even directly itself – as long as the president declares an emergency, as during the recent pandemic, is a thoroughly illiberal one. Hypothetically, her idea would open the door to trampling on speech rights, even for something as contrived as a ‘climate emergency’.

Moreover, as we saw during the Covid period, the Biden government was not ‘ensuring the public had accurate information’, as Justice Jackson assumes – it pushed arguments that were later proven false and attempted to crush criticisms of its policies. For example, the scientific community has since vindicated those who questioned the efficacy of masks and several US government agencies themselves now admit the lab-leak theory of Covid’s origins is a plausible one.

The Biden regime went into overdrive to silence experts such as epidemiologists Jay Bhattacharya and Martin Kulldorff – co-authors of the Great Barrington Declaration, an open letter opposing Covid lockdown policies. But today many recognise that lockdown had tremendously negative consequences for society. Even the New York Times, a fervent advocate of lockdown, now admits that lockdown policies like school closures had devastatingly harmful effects for children’s health and education. The Biden administration’s quashing of debate during the pandemic meant that the American people were arguably less informed than they should have been. Indeed, the Biden campaign to combat ‘disinformation’ will itself have damaged people’s health. The administration’s harmful lockdown policies might have ended sooner if social-media companies had not followed the Biden team’s orders to restrict speech during the pandemic.

‘The government actually has a duty to take steps to protect the citizens of this country’, said Justice Jackson during the oral arguments. Challenging the plaintiff’s lawyer, Louisiana state solicitor general Benjamin Aguiñaga, Jackson said: ‘You seem to be suggesting that that duty [to protect] cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.’

With this line of questioning, it seems Justice Jackson has bought the Biden administration’s Orwellian line: that it simply wants to protect the public from bad ideas, for the public’s own good. Never mind that the ideas that the administration wants to ‘protect’ us from are often the truth. Never mind that the Biden team has sought to censor criticisms of its own policies, as well as information that would damage Biden’s electoral prospects (like the Hunter Biden laptop story). Never mind that it is we, the public, who need to be protected from an overreaching government if we are to retain our right to speak freely.

As Jay Bhattacharya – the epidemiologist who was proven correct in his warnings about lockdown – told the Free Press, ‘As a scientist and a professor, the heart of my job is to speak. And I have to look over my shoulder and worry whether the government is going to censor my speech. That’s just shocking.’ It is indeed shocking. When it comes to Murthy v Missouri, let’s hope there are enough Supreme Court justices who share Bhattacharya’s concerns and will put up a legal barrier to the Biden government’s coercion of social-media companies.

But whatever the outcome of this case, defenders of free speech still have work to do to win the argument in the political arena. It may be chilling to think that Justice Jackson considers it acceptable to take away our speech rights, but she is far from the only one who thinks the public’s opinions are a bigger threat to America than the army of censoring zealots in the Biden government.

Sean Collins is a writer based in New York. Visit his blog, The American Situation.