In this social media age, governments around the world — especially our own — are struggling with what to do with the onslaught of speech that counters the government agenda. There may be some people in government acting in good faith to really figure out how to deal with the truly evil stuff that finds its way online.
When it comes to Biden administration officials, however, you know their true intentions by whom they consider real threats to “democracy” and the specific viewpoints they target. They’re casting a very wide net to try to deal with genuinely bad stuff, but they’re scooping up legitimate speech in the process — and it just happens to be legitimate speech that they disagree with.
You can’t have freedom without the option to abuse it, or else it wouldn’t be true freedom.
The U.S. Supreme Court this term will decide an important First Amendment case. The oral argument in Murthy v. Missouri was two weeks ago. The case involves the Biden administration pressuring social media companies to block views that the White House objects to on topics including COVID-19 origins, masks, vaccines, lockdowns, the Hunter Biden laptop, climate change, mail-in voting, and election integrity. The Biden administration sought to censor free speech even when the social media companies knew the suppressed misinformation was true.
In addition to the White House, the FBI, the Centers for Disease Control, and the Cybersecurity and Infrastructure Security Agency all engaged in this pressure campaign against social media companies. According to an amicus brief filed by the Foundation for Individual Rights and Expression, “Various government officials became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms’ policies from the inside.”
It seems clear that, as the U.S. Court of Appeals for the Fifth Circuit concluded last year, the Biden administration violated the First Amendment by meddling with what should be content moderation decisions made by private companies. Yet the Biden administration appealed this case all the way to the Supreme Court because officials argue that their free speech was being violated. The gall!
During the oral argument, at least one Supreme Court justice, Ketanji Brown Jackson, seemed to agree with Team Biden. “My biggest concern is that your view of the First Amendment is hamstringing the government in significant ways,” she said. She worried the government would be restricted in its response to a “threatening circumstance.”
“Hamstringing” the government is kind of the whole point of the First Amendment if you think about it. The government cannot prohibit freedom of speech. Period. As interpreted by the Supreme Court over time, this applies across the board with very limited exceptions, such as defamation, genuine threats, or fraud.
What’s more, the Constitution doesn’t include an emergency exemption clause. Unless the speech falls under one of the Supreme Court’s very limited exceptions, it must be allowed, even if the nation is in some kind of “threatening circumstance,” as Jackson put it. Otherwise, what would stop a president from declaring something like a national climate emergency, then censoring speech that fails to prop up climate alarmism?
The Constitution was designed by people who were absolutely set against unlimited government power. From the earliest Progressives to Justice Jackson, the left has always been convinced of the opposite: that good experts in government will be able to filter through speech and righteously determine the bad speech, that Americans need authorities to sift through the misinformation and disinformation to separate it from the “good speech” in which you’re allowed to engage.
To have and maintain this vital First Amendment right, you must put up with a lot of truly evil garbage. People say and write and promote the worst stuff. They abuse this amazing freedom we have. That’s just the reality. Often, civil people easily agree on what speech is horrible, and then in the marketplace of ideas that horrible speech gets pushed to the fringes. But to keep this marketplace truly open, you deal with a constant barrage of stuff you disagree with.
The solution to the garbage should never be worse than the garbage itself. The First Amendment isn’t conditioned upon “threatening circumstances,” as Ketanji Brown Jackson put it. The First Amendment assumes such circumstances. You can’t have freedom without the option to abuse it, or else it wouldn’t be true freedom. Don’t let the Biden administration convince you of anything less during this critical Supreme Court case.
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