Late in oral arguments yesterday during the Murthy v Missouri censorship case before the Supreme Court, newest Justice Ketanji Brown Jackson interrogated J. Benjamin Aguinaga, Solicitor General of Louisiana:
JACKSON: So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods…
Can you help me? Because I’m really — 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.
“Can you help me?” Yes, I would love to help you, Justice Jackson, to a less challenging line of work… Hamstringing the government, Good God!
That a line about “the First Amendment hamstringing the government” was uttered by one Supreme Court Justice is astonishing enough. Listening as none of the other eight pointed out that the entire purpose of the First Amendment is to “hamstring” government from interfering in speech was like watching someone drive a tank back and forth over Old Yeller. I needed a bite-stick by the end of the hearing.
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A lot of us who’ve spent the last years working to expose the federal government’s myriad new content control bureaucracies had high hopes this case might stop some of the bleeding on the civil liberties front. After listening to Jackson’s “Can you help me?” rant, the game seems up (at least for now) at the judicial level.
We’ve been had. I wondered last fall why the federal government didn’t just take the mild rebuke they received from the Fifth Circuit Court of Appeals and move on. Now I see the benefit in going to the high court. The government is on the precipice of gaining explicit permission to fully re-charge its censorship machine, potentially leaving this new arm of the surveillance state more empowered than before.
Principal Deputy Solicitor General Brian Fletcher opened his presentation to the Supremes with a reasonable-sounding thesis.
“The government may not use coercive threats to suppress speech,” he said, “but it is entitled to speak for itself by informing, persuading, or criticizing private speakers.”
With just occasional objections from Justices Samuel Alito and Clarence Thomas, Fletcher from there was able to proceed with what I’d characterize as less a legal argument than a public relations re-write.
This case burned up lower courts because district and appellate judges were alarmed by the sudden proliferation of high-volume, state-sponsored content-flagging programs that collectively serve as an industrial scale content-surveillance operation. From the Foreign Influence Task Force (FITF) of the FBI and the Office of the Director of National Intelligence (ODNI) to quasi-private content-review programs like the Election Integrity Partnership created at the behest of the Departments of Homeland Security and State, the federal government has quickly formed a huge bureaucracy for firehosing “requests” to Internet platforms. When coupled with regulatory threats, requests amount to a forced “partnership” on moderation.
This is why Appellate Judge Don Willett of the Fifth Circuit compared the flow of content demands to the fabled “offer you can’t refuse” of the mafia: “That’s a real nice social media platform you got there. It’d be a shame if something happened to it.”
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Fletcher, with the seeming cooperation of most of the Justices, re-framed these requests as a handful of gentle recommendations, mostly made in the past, mostly in one extraordinary “public health crisis,” Covid-19.
Never mind that the theory of the case was that the plaintiffs were suppressed when they corrected government misinformation in that episode (a piece coming later today will explain), or that the evidence described interventions in a broad range of topics in no way limited to Covid-19. The colloquy re-framed the outing of extravagantly funded, ongoing content-flagging programs, designed by veterans of foreign counterterrorism operations and targeting the domestic population, as a debate about what Fletcher called “classic bully pulpit exhortations.”
I must have missed this part in civics class. Teddy Roosevelt lauded the “bully” pulpit of the presidency as a forum for doing what presidents are elected to do: use their platform to make a convincing public case to voters who hold the real power in a democracy. The Biden conception of a “bully pulpit” apparently involves leaning on media distributors in private to quiet speech. Are those two things even remotely similar?
The context of Flaherty’s “classic bully pulpit exhortations” quote was another incredible moment. He said, effectively, “There were no overt threats against the companies, except for all those times my clients did it in public, in ways conspicuous enough to generate national headlines.”
