By: Mark Glennon*
This shouldnt be hard to understand: If you think government should have the power to censor what it says is false, then you dont believe in the bedrock of a democratic republic: free speech.
But a group of progressive state attorneys general apparently think government should have that power because thats exactly what they recently asked the U.S Supreme Court to make the law of the land.
Its in an amicus brief signed by 23 state attorneys general in what will be a historic case now pending before the Supreme Court on whether the government can bypass the First Amendment using private sector tech platforms as its agents to censor what the government doesnt like. Illinois Attorney General Kwame Raoul is among the signers.
The case is Murthy v. Missouri, formerly called Biden v. Missouri.
The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life, wrote the federal appellate court in its ruling against the government.
In a fitting and splendid gift to America last Independence Day, a federal trial judge issued a 154-page ruling on the case laying out the facts against the government in detail. The evidence of tech manipulation directed by the government was so strong and the matter so important that the judge issued a temporary, sweeping order barring the Biden Administration and the rest of the federal government from most all contact with social media platforms.
The federal appellate court upheld the ruling though it changed the wording of the order.
Now comes the Supreme Court, which will hear the case this spring.
And enter the group of state A.G.s
The government will lose. The lawsuit will not be vacated. The only real issue is on what terms they will lose, which is what the A.G.s should have addressed. The evidence is simply too overwhelming to deny. The Biden Administration, including the FBI and the Centers for Disease Control, strongarmed social media platforms to squelch unfavorable stories and elevate its narrative of the news about the Hunter Biden laptop scandals, Covid, President Biden, election integrity and more. Its all laid out in the trial courts ruling. Thousands of pages of evidence showing it are summarized therein. Read the trial courts memorandum yourself.
In a ruling of such importance and with such broad consequences, however, theres reasonable disagreement over exactly how to write out what the government must not be allowed to censor.
But the A.G.s brief doesnt do that, asking the Supreme Court to throw the case out entirely: Vacate the lower courts ruling entirely, the brief expressly requests.
Censor away, in other words.
To be specific, this is about stopping the government from skirting its First Amendment obligations by outsourcing censorship to private parties not bound by the First Amendment, like tech platforms, that can censor what they choose if acting on their own.
Government often publishes guidelines and information on foreign travel warnings, cybersecurity threats, scam artists, public health and the like. No problem. But free speech is denied when the government imposes its messaging on private news platforms to suppress competing viewpoints. Those efforts usually travel under the label of combating misinformation, hate speech or the like.
The line can be difficult to draw. When does the government wrongly coerce and encourage censorship by tech platforms?
Suppose the FBI suggests you censor something. Maybe it would be like saying this, as one of the appellate judges put it perfectly during oral arguments: Thats a really nice social media platform you got there it would be a shame if something happened to it.
The appellate court drew the line between harmless government guidance and unconstitutional strongarming by issuing an order saying this:
The appellate court Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies decision-making processes.
It reached that conclusion based after a long analysis in its opinion of court precedent, logic and practicality. That temporary order was put on hold by the Supreme Court pending its review, but its all but certain to be made permanent in some fashion, the appellate court concluded, and thats surely true subject only to whatever adjustments the Supreme Court sees fit.
How does the A.G.s brief justify throwing out the case entirely, disregarding rafts of evidence and precedent?
It doesnt.
It resorts to red herrings, first with a big list of ways government publishes routine guidance that should be permissible on matters that nobody has a problem with.
When it comes to whats at issue actually censoring what the government doesnt like Raouls brief claims the appellate court ruled that the mere existence of government amounts to coercion, and that it relied on a vague entanglement standard about government involvement with tech companies.
Those, too, are red herrings. Those factors had little role in the appellate courts ruling. Insofar as they were part of the analysis and should be downplayed, fine, tweak the ruling to fix that. The A.G.s might plausibly have argued for the Supreme Court to do that.
Instead, they asked the Supreme Court to throw out the whole lawsuit.
That result would gut free speech and lobotomize democracy.
For a more scholarly summary of the First Amendment infractions in Raouls brief, see the recent column here by my brother, Mike, a law professor. Better yet, read his new book on the full subject of the modern assault on free speech: Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era.
Illinois is among the worst offenders in that modern allure of censorship. Its long train of abuse and usurpations is often flagrant, listed in the columns linked below. Making that assault on free speech more terrifying is the abandonment by most media of its traditional role defending free speech. You will find little if anything in Illinois legacy media on the matters in that list.
Above all, know this: Your rights include the right to hear. The right to hear what the government doesnt want you to hear is a corollary of your First Amendment right to free speech, as the courts long ago ruled. Its that right to hear that is being stolen from you, and that right is directly at issue in Murthy v. Missouri.
That right was not given to you by anybody in any level of government. Give it up and youve given up your democratic republic.
*Mark Glennon is founder of Wirepoints.
The column was updated to show the number of attorneys general signing the brief as 23.
Illinois recent, long train of free speech abuses:
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Let The Government Censor Away Through Agents It Controls, Say Kwame Raoul And Cabal Of A.G.s To U.S. ... - Wirepoints