Note to Ketanji Brown Jackson: The First Amendment Should ‘Hamstring’ the Government. That’s the Entire Point.
Tyler O'Neil /
During the COVID-19 pandemic, the federal government strong-armed Big Tech companies into censoring as “disinformation” Americans’ true experiences while effectively mandating government propaganda, which itself turned out to be misinformation.
The Supreme Court is currently considering whether that strategy violated the First Amendment.
Supreme Court Justice Ketanji Brown Jackson suggested during oral arguments Monday that the First Amendment should not be allowed to “hamstring” the government amid a crisis.
Jackson asked J. Benjamin Aguiñaga, the solicitor general of Louisiana, a rather revealing question about the issue.
“So, my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Jackson said.
The Supreme Court justice presented an extremely unlikely hypothetical that most American young people would find very insulting. She presented a scenario in which young people took cellphone video of their peers jumping out of windows, and that trend went viral on social media (preposterous), Big Tech companies failed to take action on their own (very unlikely), and the government wanted to stop it.
She asked Aguiñaga, “What would you have the government do? I’ve heard you say a couple times that the government can post its own speech, but in my hypothetical, ‘Kids, this is not safe, don’t do it,’ is not going to get it done.”
“So, I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information,” Jackson said. “I’m really worried about that because you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems.”
“I understand that instinct,” Aguiñaga replied. “Our position is not that the government can’t interact with the platforms there … but the way they do that has to be in compliance with the First Amendment.”
Jackson suggested it would be unjust for the First Amendment to limit the government’s actions in addressing a hypothetical crisis, but the First Amendment expressly exists in order to hamstring the federal government.
As Rep. Jim Jordan, R-Ohio, said in response to Jackson’s concern about the First Amendment hamstringing the federal government, “that’s what it’s supposed to do, for goodness’ sake.”
The amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The amendment does not include a “crisis-exemption clause” allowing the government to trample on free speech if the president declares a national emergency. If it did, President Joe Biden might declare a national emergency on climate and strong-arm Big Tech into censoring opposition to the climate alarmist narrative. He might declare a national emergency on the nonexistent “epidemic” of violence against transgender people, and pressure social media to ban any disagreement with gender ideology.
Big Tech platforms already censor conservative speech on those issues, but it could become far worse.
Missouri v. Murthy presents an excellent illustration.
The plaintiffs in the case—Missouri and Louisiana, represented by state Attorneys General Andrew Bailey and Liz Murrill, respectively; doctors who spoke out against the COVID-19 mandates, such as Martin Kulldorff, Jayanta Bhattacharya, and Aaron Kheriaty; Gateway Pundit founder Jim Hoft; and anti-lockdown advocate and Health Freedom Louisiana Co-Director Jill Hines—allege that the Biden administration “suppressed conservative-leaning free speech” on the Hunter Biden laptop story ahead of the 2020 presidential election; on COVID-19 issues, including its origin, masks, lockdowns, and vaccines; on election integrity in the 2020 presidential election; on the security of voting by mail; on the economy; and on Joe Biden himself.
On July 4, federal Judge Terry Doughty in the U.S. District Court for the Western District of Louisiana issued an injunction barring the Biden administration from pressuring Big Tech to censor Americans.
Doughty’s injunction named various federal agencies—including the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases (the agency Dr. Anthony Fauci formerly directed), the Centers for Disease Control and Prevention, the FBI, the Department of Justice, and the State Department—and officials, including HHS Secretary Xavier Becerra, Surgeon General Vivek Murthy, and White House press secretary Karine Jean-Pierre.
The U.S. Court of Appeals for the 5th Circuit narrowed the extent of Doughty’s injunction, and the Supreme Court stayed the 5th Circuit’s order before taking up the case.
“The Twitter Files” revealed how the process worked: Federal agencies would have frequent meetings with Big Tech companies, warning about “misinformation” and repeatedly pressuring them to remove or suppress content. Federal agents and politicians occasionally threatened that if the companies did not act, the government would reform Section 230 of the Communications Decency Act, removing legal protections the companies enjoyed.
As Justice Samuel Alito noted, federal officials treated Facebook, Twitter (now X), and other social media companies “like their subordinates.”
As part of this lawsuit, Bailey unearthed documents in which Facebook told the White House that it suppressed “often-true content” that might discourage Americans from taking COVID-19 vaccines.
In that context, Jackson’s question about the First Amendment “hamstringing the government” seems particularly alarming. The federal government did not act to suppress speech amid an existential crisis like a world war or a civil war. It acted after good data became available showing that COVID-19 poses a deadly threat to the elderly and those with co-morbidities, and while the government was advocating vaccines for all populations, not just the most vulnerable.
Jackson’s question suggests that she wants the government to have more control over speech on social media, even after the abuses this case uncovered.
If the First Amendment is good for anything, it should “hamstring” the government from silencing Americans in order to push its own propaganda. Jackson, as a sitting Supreme Court justice, should know that.
Then again, if she can’t define the word “woman,” perhaps Americans shouldn’t be surprised if she doesn’t grasp the fundamental purpose of the First Amendment.
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