First Amendment Under Attack…Again — How Many Challenges Can 1st Amendment Withstand?

The right to free speech, guaranteed in the Constitution, is under attack again, only this time from the United States Supreme Court, the place that should have the most reverence for the most crucial and first right in our Bill of Rights.

In Supreme Court oral arguments last week, numerous justices seemed ready to allow the government to censor speech online. This would effectively abandon two centuries of U.S. history and decades of rulings from the high court that made the First Amendment all but impenetrable to challenge.

The case argued Monday, March 17, titled originally Missouri v. Biden and known now as Murthy v. Missouri. The state attorneys general of Louisiana and Missouri sued the federal government for what a federal judge called later the most significant government violation of First Amendment rights in U.S. history.

This all emerged from an exposé of the Twitter Files. The CIA, Department of Homeland Security, and FBI, along with dozens of other agencies, pressured Facebook, Twitter, and other social media platforms to silence the thousands of conservative voices.

This violated the freedom given in the First Amendment of people posting content and millions of Americans who had the right to hear banned voices. So, on July 4 last year, Terry A. Doughty, U.S. District Court Judge in Louisiana, issued a comprehensive ban on most government contact with social media platforms.

The Biden administration appealed, and the panel of three judges on the Fifth Circuit Court of Appeals narrowed the scope of Judge Doughty’s ban but kept some of it in place.

So, there was an appeal to the Supreme Court for a stay of the order, and it was gained. The U.S. government wants to continue censoring free speech through the 2024 presidential election. Based on last week’s hearing, the SCOTUS will take up the case for worse or better.

The newer members of the High Court don’t seem to regard the First Amendment. Kentanji Brown Jackson, the newest justice, told the lawyer for Missouri, “You’re not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so” regarding government power.

This happens seldom in cases of free speech and never occurred in the thousands of times the government had platforms to stifle conservative viewpoints, the centermost issue in the case. This is unbridled censorship on a colossal scale.

If the government wants to punish the report leaker afterward, it’s okay, but it can’t pre-emptively ban the publishing. The law of the land is no previous restraint on speech.

Liberal Obama appointee Justice Elena Kagan said in her previous position as a government lawyer, “I’ve had some experience encouraging the press to suppress their own speech. You just wrote a bad editorial. Here are five reasons you shouldn’t write another one. … I mean, this happens literally thousands of times a day in the federal government.”

I doubt it.

Even supposed conservative Justice Brett Kavanaugh, appointed by President Donald Trump, appeared to side with the government against those silenced, stating that he also pressured publications prior. As Kavanaugh told the government attorney in the case: “So, I understand your key legal argument is that coercion does not encompass significant encouragement or entanglement and that it would be a mistake to so conclude because traditional everyday communications would be deemed problematic.”

“Exactly right,” said Deputy Solicitor General Brian Fletcher.

The ambiguous “conservative” Chief Justice John Roberts, who George W. Bush appointed, then chimed in and agrees with liberal Justice Kagan. Roberts implied that because so many government agencies weighed in, it “diluted” any notion of coercion.

“I was going to say, first, I have no experience coercing anybody. Second, the government is not monolithic, either. I suspect, when there’s pressure put on one of the platforms or certainly one of the other media outlets, they have people they go to, probably in the government… It’s not monolithic. And that has to dilute the concept of coercion significantly, doesn’t it?”

“Your Honor, I’m not sure I agree with that,” J. Benjamin Aguinaga, solicitor general of Louisiana, responded. Whether you call it encouragement or coercion, “if the government is attempting to abridge the free speech rights of a third party, that has to be unconstitutional because that falls within the plain text of the First Amendment.”

And there you go.