‘Kind of Terrifying’: Critics Slam Claim That First Amendment Shouldn’t Constrain Government’s Ability to Censor
Journalist Matt Taibbi was among those who denounced statements made by liberal Justice Ketanji Brown Jackson during a U.S. Supreme Court hearing suggesting the First Amendment should not constrain the government's ability to combat misinformation during a crisis.
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Journalist Matt Taibbi denounced statements made by liberal Justice Ketanji Brown Jackson during a U.S. Supreme Court hearing suggesting the First Amendment should not constrain the government’s ability to combat misinformation during a crisis.
“That was kind of terrifying because the entire purpose of the First Amendment is to restrain the government — it’s not to restrain the public from getting in the way of government action,” Taibbi said Tuesday during an interview on The Hill’s “Rising.”
Taibbi, who has reported extensively on the government’s censorship efforts, also said the plaintiffs in the case — including Drs. Jay Bhattacharya, Martin Kulldorff and Aaron Kheriaty — had their speech suppressed because they contradicted a false government opinion.
“The entire purpose of the First Amendment is to prevent the government from creating a hegemonic opinion that cannot be challenged,” Taibbi said.
The Supreme Court heard arguments on Monday pertaining to an injunction, granted in September 2023 by a federal appeals court, in Murthy v. Missouri. The case centers on whether the federal government violated the First Amendment by pressuring social media companies to censor content that ran counter to official government narratives on such topics as COVID-19 origins, vaccines, elections and other controversial topics.
Responding to Solicitor General of Louisiana J. Benjamin Aguiñaga during oral arguments, Justice Jackson said:
“So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods. I mean, what would you have the government do? I’ve heard you say a couple of times that the government can post its own speech, but in my hypothetical, you know, ‘Kids, this is not safe, don’t do it,’ is not going to get it done.
“And so I guess some might say that the government has a duty to take steps to protect the citizens of this country. And you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.”
Government set up ‘private highway’ to social media execs
“Rising” host Briahna Joy Gray asked Taibbi which was the primary issue: the government’s actions or the companies’ choices to succumb to pressure?
Taibbi compared the situation to the government hypothetically threatening to pull a mainstream media outlet’s Federal Communications Commission license unless it held a story, which he argued would be highly inappropriate.
“They didn’t just do that in this case,” Taibbi explained. “They went straight to the heads of the company” using an “industrial-scale operation … a sort of private highway to all of these companies where they were funneling mass requests.”
Taibbi noted that Renée DiResta, research director of the Election Integrity Partnership that was sponsored by both the U.S. Department of State and the U.S. Department of Homeland Security, “talked about using Section 230 to bring these companies to heel.”
“This was an overt threat,” Taibbi said.
Taibbi suggested it would be appropriate for the government to use its bully pulpit to say, “I don’t like what’s on Facebook. They made a mistake here, here and here. Here’s what I think the truth is, and we see these posts that say something else.”
“The president has an enormous megaphone to counter” what it considers misinformation, Tabbi said. “What’s not appropriate is doing it in private and coupling it with a threat.”
Justices missed the point on First Amendment
On his Racket News Substack Tuesday, Taibbi provided further context on the government’s pressure on social media companies.
During oral arguments, Principal Deputy Solicitor General Brian Fletcher — referring to instances where government officials publicly criticized social media platforms and called for changes to Section 230 protections — said, “I think it’s really troubling, the idea that those sorts of classic bully pulpit exhortations, public statements urging actors to behave in different ways, might be deemed to violate the First Amendment.”
Taibbi lamented the lack of a strong response from the other eight justices.
“That a line about ‘the First Amendment hamstringing the government’ was uttered by one Supreme Court Justice is astonishing enough,” he wrote. “[But] 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.”
As evidence of the justices’ confusion over First Amendment rights, Taibbi pointed to Justice Elena Kagan’s statement that the government intervening in news organizations’ activities “happened all the time” decades ago, especially when issues of national security were at stake.
As to her question, “Was that coercion?” Taibbi wrote:
“The situations aren’t remotely analogous. What’s happening now is a wide-scale partnership agreement between intelligence/enforcement agencies and media distributors, not media outlets themselves.”
Rep. Jordan: ‘That is scary where we’re headed’
Some Congress members were quick to criticize Justice Jackson’s statements from the Murthy v. Missouri hearing.
Rep. Jim Jordan (R-Ohio), in an interview with Fox News Monday, said, “The big takeaway today was Katanji Brown Jackson, when she said to the Solicitor General from Louisiana, ‘You’ve got the First Amendment hamstringing the government’ — well, that’s what it’s supposed to do, for goodness sake!”
“That is frightening because she really believes that,” Jordan added. “That is scary where we’re headed.”
Rep. Dan Bishop (R-N.C.) suggested that if the Supreme Court does not intervene, it could allow the FBI to “embed itself with social media companies” and “take down” issues like “the Hunter Biden laptop in election after election after election.”
Bishop argued that the government should not be able to suppress legal, protected speech on public platforms. “I just don’t think the government ever has a valid interest in doing that,” he said.
“[The government] can … come out publicly and say, ‘We don’t agree that there could have been a lab leak, that we think that’s a ridiculous theory,’” said Bishop. But he argued it was a “bad idea” to allow the government to pressure social media because “We see from what has happened afterward … they were wrong.”
Jordan also alleged that the Biden administration abused its power by censoring political opponents, citing its pressure to remove a tweet by Robert F. Kennedy Jr., Children’s Health Defense chairman on leave, despite the tweet containing true statements about Hank Aaron’s vaccination and passing.
“Oh, by the way, who was that individual [requesting the censorship]?” Jordan asked, before answering, “The guy running against him in the [Democratic] primary [at the time]. That is as scary as it gets, but that’s what this White House was doing.”
Will ‘traceability’ derail free speech case?
One of the central questions before the Supreme Court in Murthy v. Missouri is whether the government’s actions, including vague threats and pressure on social media companies, constitute illegal coercion.
Taibbi pointed out in the “Rising” interview that the “Twitter Files” showed “both overt and less obvious evidence” of correspondence among Twitter’s executives describing how they understood proposed regulatory changes as a threat they must answer to get the government off their back.
“That’s not missing from the case — that’s a feature of the case,” Taibbi said, adding that he thought the government publicly airing those threats “was sending a very strong message so that not only the companies would hear it, but the public would hear it.”
Taibbi acknowledged the difficulty of establishing “traceability” — a direct causal relationship between government pressure and the censorship of individual plaintiffs’ posts — saying their evidence “didn’t show a soup-to-nuts progression.”
However, he noted that shortly after the government told social media companies, ‘We don’t want anybody who is creating content that would promote vaccine hesitancy,’” people like Dr. Bhattacharya and Dr. Kulldorff were “deamplified or removed from platforms.”
Taibbi highlighted the lower court rulings that established or upheld injunctions against the government’s use of coercive tactics with social media companies.
“Two judges compared it to a mob movie,” he said. Characterizing the government in this metaphor, the judges said, ‘Hey, it’s a nice tech company you’ve got there. Be a shame if something happened to it,” Taibbi said.
“Rising” host Robby Soave asked Taibbi whether a legislative remedy could prevent government censorship. Taibbi said that while he felt there was ample evidence that what the government engaged in was already against the law, he thought it would be “difficult” to get a new law passed “absent a judicial ruling that this kind of behavior is illegal.”
But even if such a law were passed, “The problem is the enforcement mechanism is absent here,” he said.
In his Racket News article, Taibbi said the Supreme Court hearing “felt like a gut punch.” He expressed concern that if the court rules against the plaintiffs based on “traceability” issues, it could be interpreted as an endorsement of the government’s “plainly abusive” surveillance and censorship programs.
He wrote:
“Murthy [v. Missouri] already represents a major public relations victory for the Executive Branch.
“After roughly two years in which momentum for shutting down government censorship programs seemed to be gaining, and episodes like Bhattacharya’s punctured the myth that such bureaucracies only targeted ‘misinformation,’ yesterday’s hearing will help restore the basic narrative that the activities revealed earlier in this suit and in the Twitter Files was little more than good-faith efforts by a concerned government trying to stop ‘harm’ in a unique historical emergency.
“As Brown Jackson put it, ‘What would you have the government do?’”
Watch The Hill’s ‘Rising’:
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