March 18, 2024 – The Supreme Court hears oral arguments (transcript) in the case of Murthy v. Missouri (formerly known as Biden v. Missouri). The case centers around the issue of government censorship and whether the federal government broke the law when they pressured social media companies to censor speech that went against their baseless COVID narrative (or questioned the results of the stolen 2020 election). During the hearing, the government argued – via attorney Brian Fletcher – that the Fifth Circuit Court of Appeals erred by mistaking “persuasion for coercion,” and that “government speech crosses the line into coercion only if… it conveys a threat of adverse government action.” The hearing is 102 minutes and well worth taking the time to listen to.
During the back and forth, Justice Alito – perhaps sounding a tad naïve – shared his thoughts about the email exchanges “between the White House and other federal officials on Facebook [and] some of the other platforms” (pgs. 21-27). Alito correctly characterized the government and these social media companies as being members of the same team, especially since the government was constantly “pestering” them to take actions that were – when considered in the context of the First Amendment – entirely inappropriate. He also went on to question whether these types of interactions would be appropriate if they involved media outlets like the NY Slimes or the Wall Street Jingo. If you read through my breakdown of the Fauci emails it’s very clear these types of interactions take place all the time. The major difference, however, is the way in which these interactions are initiated. For example, if some media lapdog reaches out to Fauci in an attempt to confirm the information they have is accurate before printing it, this would just be a reporter doing their due diligence (though I would more accurately describe it as a propagandist sucking up by making sure they promote the correct narrative). Alito made a very important distinction as to why he felt the actions the government was taking in regard to social media censorship fell more into the category of coercion than suggestion saying, “the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and… it’s got these big clubs… available to it, and so it’s treating Facebook and these other platforms like they’re subordinates. Would you do that to… The New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?” In other words, by the government dangling the threat of increased regulation over them, they can force these companies to violate the free speech rights of citizens – a power the government does not have. Fletcher’s response to this line of questioning is as revealing as it is disturbing, saying in part, “So potentially in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic. I really think that piece of context, it doesn’t change the First Amendment principles, but it’s relevant to how they apply here. And I think it’s important to understand that at this time, this was a time when thousands of Americans were still dying every week and there was a hope that getting everyone vaccinated could stop the pandemic. And there was a concern that Americans were getting their news about the vaccine from these platforms, and the platforms were promoting, not just posting – but promoting – bad information.” Says who? Competing information is not necessarily “bad” information. The fact that Fletcher would make an argument like this in March of 2024, when we know just about every action or restriction the government put in place during the pandemic did more harm than good, is flat-out ridiculous. But regardless of whether those actions were right or wrong, the First Amendment was clearly violated. For example, my Twitter account was permanently suspended for posting the factual Tweet pictured below. It was not reinstated until Elon Musk acquired the company, and I was never notified about the reinstatement. I just happened to randomly check on the account one day – well over a year later – and saw that it was active again. FYI, I don’t really use social media anymore. I do have a NY Educator Twitter account, but I haven’t posted much there. Maybe that’ll change in the future, though it’s enough work just trying to keep up with the site. But I digress…
After a short rebuttal from Alito where he again suggests he may be naïve and reiterates his dismay over the nature of the relationship between government and media, Fletcher continues saying, “I think this is important because I had the same reaction that you do, that these emails look unusual. I think the idea that there would be back and forth between the government and the media isn’t unusual at all… Now there’s an intensity of the back and forth here and there’s an anger that I think is unusual, but the context for that I think is that these platforms were saying publicly, we want to help, we think we have a responsibility to give people accurate information and not bad information, and we’re doing everything we can to meet that goal. That’s where this language of partnership comes from. It’s not just from the White House. It’s these platforms… saying we’re doing the best we can. And the anger, I think really most of the anger when you read the emails… is when the officials think that the platforms are not being transparent about the scope of the problem or aren’t giving information that’s available.” The government and media routinely communicating in order to align on messaging is certainly not a new thing. However, the government coercing media companies to censor accurate things average people are saying because it might run counter to one of their many narratives is new. And it’s indefensible. The Bill of Rights and Constitution do not get put on hold because there’s a “once-in-a-lifetime pandemic” going on. Or a war. Or anything else that could be considered an emergency. The fact of the matter is the moment China Joe was installed as president, his bogus administration immediately began abusing their power. Fletcher can try to normalize this tyranny any way he likes, but it was clearly wrong and it directly led to suffering and death for far too many people.
Louisiana Solicitor General Benjamin Aguiñaga’s time began around the 48:30 mark of the linked audio (page 64 of the transcript). To open, Aguiñaga said in part, “Government censorship has no place in our democracy. That is why this 20,000-page record is stunning. As the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The district court, which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise… Behind closed doors, the government badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned, it ominously says that the White House is considering its options, and it accuses platforms both of playing total Calvinball and of hiding the ball, all to get the platforms to censor more speech. Under this onslaught, the platforms routinely cave… Now my friend says all this is constitutional because the government has the right to persuade using the bully pulpit. But the government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That’s just being a bully.”
Overall, Aguiñaga did a decent-enough job, but I was very disappointed that he said nothing about how those being censored were right, and the government was wrong. Whether in regard to the use of certain drugs to treat and prevent COVID, the danger posed by the “vaccines” or the rigged 2020 election, the government was censoring and limiting the reach of the truth. This was not done out of ignorance or some noble desire to protect people, they were lies intended to protect their false narratives. I was also disappointed by the nature of the pushback Aguiñaga was receiving from all of the Justices, as they were insisting he had not done enough to prove it was the government that was directly responsible for the censorship. If 20,000 pages of communications “encouraging” censorship isn’t proof of coercion, I don’t know what is. This website alone contains countless examples of government coercion and censorship that started in 2020 and continues to this day.
Despite many pertinent exchanges between the Justices and the attorneys throughout the hearing, much of the media coverage – both mainstream and alternative – has been focused on (also see this) an exchange between Justice Ketanji Brown Jackson and Aguiñaga in which Jackson suggested, pretty innocuously in my opinion, that his interpretation of the First Amendment would “hamstring” the government’s ability prevent harm to the general public. The comment was related to a hypothetical scenario she presented (pgs. 94-96) about whether it would be okay for the government to ask social media companies to remove a “challenge” that was aimed at getting teens to jump out of windows at “increasing elevations,” to which Aguiñaga replied it would not be okay, and that this would be protected speech no matter how dangerous – a rather hardline position, but one I don’t disagree with. Moreover, Justice Kavanaugh and Justice Barrett made similar suggestions at different points during the hearing (pgs. 108-116). I find faux outrage over things like this very frustrating. Focusing more on how Section 230 is being used as the means for the government’s coercive behavior, or the massive trove of coercive communications between government agencies and private companies submitted by the respondents, is not only more tangible, but ultimately where this case will be won or lost.
The outcome of this case will also have a significant impact on another free speech case, Kennedy v. Biden, which was consolidated with Murthy v. Missouri as both cases have submitted the same communication records as evidence. Justice Alito has expressed concern about this, and I agree, because Kennedy v. Biden involves the censoring of a political candidate, and is therefore a significantly different case. But what’s done is done. While I’m not overly optimistic about the decision SCOTUS will arrive at, my hope is that our First Amendment right to free speech will override the government’s desire to persuade.
Also be sure to check out this important article published by the Brownstone Institute about the amici curiae briefs submitted to SCOTUS for the Murthy v. Missouri case, and this article by Igor Chudov about what an establishment mouthpiece sounds like.