Unfortunately, based on what we heard from the Supreme Court this week in the landmark free speech case Murthy v. Missouri, a majority of the court seems to have instead read this to say, “Nothing shall prevent the government from forcing private companies to redress their grievances against those exercising the freedom of speech, or of the press.” Even more unfortunately, that majority includes Justices who were put on the Supreme Court as presumptively reliable votes to protect our rights against trespass by the Left: namely, Amy Coney Barrett and Brett Kavanaugh.
A little background is probably in order here: Murthy v Missouri is a fairly unique case in that it concerns not a case that has actually gone to trial, but rather a case that is presently pending trial: specifically, a lawsuit by (among others) Missouri Attorney General Eric Schmitt against the federal government for coercing social media companies to suppress disfavored viewpoints under the guise of fighting “misinformation.” That this happened is indisputable, at least for anyone who’s read the Twitter Files; however, the trial itself has not happened yet, so how much of that evidence will see discovery is anyone’s guess.
However, in the run-up to the trial, Judge Terry A. Doughty of the Western District of Louisiana issued a preliminary injunction barring key parts of the federal government from communicating with social media platforms at all, citing the already existing record showing that they had, indeed, acted in a coercive manner. Terrified, the Biden administration appealed this injunction to the Fifth Circuit Court of Appeals, which narrowed the injunction, but left most of it in place. The administration then took the case directly to the Supreme Court, which stayed the injunction entirely until they heard the case (over the objections of Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas). Only this Monday did they actually hear it. The results were…not encouraging.
Some of those results were predictable. Justice Ketanji Brown Jackson, in particular, displayed precisely the kind of keen legal acumen we would expect from a DEI appointee when she complained that the position taken by the state governments would lead to the First Amendment “hamstringing” the government. To which anyone with even a passing knowledge of the First Amendment might reply, “That’s literally the point of the First Amendment.”
Justices Sotomayor and Kagan were similarly hopeless cases, which – again – we would expect from the court’s liberal bench. However, Kagan’s questioning was probably the most damaging, primarily because – along with using hypothetical cases of patently illegal conduct to argue that all censorship was necessary – Kagan tried to cast the government’s clearly abusive behavior toward social media companies as the equivalent of harassed press secretaries letting off steam when reporters publish unflattering stories. Unfortunately, however, that particular comparison wasn’t her original idea. Instead, it came from Justice Brett Kavanaugh himself. Kavanaugh, who had worked in the George W. Bush White House, noted that government PR people “regularly call up the media and berate them,” as if this was in any way comparable to what the federal government did to Twitter and similar companies. At this point, Kagan pounced.
“I have some experience with encouraging press to suppress their own speech,” she said, in what should be a terrifying quote for anyone concerned with the government’s behavior going back to her time in the Clinton administration. “I mean, this literally happens thousands of times a day in the federal government.”
In other words, come on, what’s a little threatening the press (or the main purveyors of the digital public square) among friends? We all do it!
It got worse from there. Chief Justice John Roberts chimed in after Kagan’s remark to add that while he had “no experience coercing anybody,” he had trouble believing that the government could be construed as acting monolithically in the case, and that the social media companies could’ve hypothetically complained to other departments, as if this was a case of one rogue office getting over its skis. Sorry, Chief Justice, but when the abuse is so bad that a lower court judge feels he has to enjoin the Department of Justice, the Department of Health and Human Services, the State Department, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation from so much as contacting social media companies, who do you propose they complain to, exactly? The CIA? The local dog-catcher?
As if to add insult to injury, Justice Amy Coney Barrett later chimed in to argue that if the FBI tried to get social media companies to take down a post doxing someone, that was technically censorship under the definition proposed by Missouri and the other states, and therefore their case about what constituted a First Amendment violation was somehow too broad. Never mind the obvious point, which is that it’s debatable whether doxing qualifies as protected speech under existing First Amendment law at all: what is a Republican appointee doing wringing her hands over the fact that people are allowed to be mean on the internet? Is this just more of Justice Barrett appointing herself America’s unelected mommy?
In fact, let’s broaden that question, because it deserves to be asked: what are these Republican Justices doing, and why? Well, ironically, the answer has never been clearer than in Kavanaugh’s case: they’re acting like Bush-era Republicans, who were just as much the kind of schoolmarmish, censorship-happy, surveillance state apologists that Democrats are today. For heaven’s sake, this is the administration that gave us the PATRIOT Act; why would anyone expect people who supported that administration (or, in Roberts case, who were made Chief Justice by it) to morph into free speech absolutists on the bench over a pesky little thing like the literal words of the Constitution? Many commentators wiser than us have pointed out that, rather than having a 6-3 conservative court, what we actually have is a 3-3-3 court, with three liberals (Sotomayor, Kagan, Jackson), three conservatives (Gorsuch, Thomas, Alito), and three “swing votes” (Barrett, Kavanaugh, Roberts). It’s something of an issue when the highest court in the land is deadlocked between three patriots, and three totalitarians, with only three clones of David French as the deciding vote.
Moreover, much as it pains us to write this, in the case of Amy Coney Barrett, it also goes to show that making abortion the sole criterion by which one judges potential Supreme Court nominees was a terrible idea. Not because overturning Roe wasn’t a worthy cause, but because as legal questions go, it was one of the easiest ones to answer correctly: literally all you have to do is read the United States Constitution to see that the word “abortion” doesn’t appear once in it, let alone the idea that a right to it is guaranteed therein. A middle schooler with good reading comprehension could come to the right conclusion on that question. Yet, if one doesn’t bother to ask questions about a Justice’s method of constitutional interpretation beyond that “Are you smarter than a fifth grader” question, one runs the risk of having any given Justice suddenly cease being smarter than a Fifth Grader when a case actually involves constraining the Federal government from accruing more power. Therefore, in the future, we hope that the legacy of Dobbs v Jackson will be a search for conservative Justices that goes far deeper than that one issue.
That said, we are encouraged by a few things: firstly, the case itself has not reached trial yet, and the factual record the Justices saw may, therefore, have been truncated. Make no mistake, this case will come back to the Supreme Court once it reaches its conclusion, and we hope that with the benefit of full discovery, the Justices will see this case for the smoking gun of government overreach that it is. And no, we don’t think that hope is entirely delusional.
Why? Because also on Monday, the Supreme Court heard oral argument in a case concerning a New York official’s attempt to get banks and insurance companies who worked with the NRA to cut ties with them. And there, we are happy to say, where the smoking gun proof was very much in evidence, the Court was decidedly less charitable to the government. A cynic might reply that this is only because the NRA’s name was on it, and the NRA is widely recognized as an interest group with political ties (unlike the millions of nameless and moneyless social media users who just want to speak freely), and perhaps there is something to that. We don’t know. But we hope that the court’s skepticism about the suppression of speech extends further than merely protecting favored interest groups (even those favored by conservatives) and establishment media. We hope that they can be convinced, eventually, that the “persuasion” employed by the federal government is as much persuasion as that employed by the Italian mob when they come calling with nails and car generators. Because if not, then we face the prospect of Americans’ rights – and the Constitution itself – being subject to the coercive whims of Leftist mobs.
