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This is a fateful moment for our country, and the Supreme Court must get this one right — guided by the Constitution and not by the government’s fear-mongering that Americans need unelected bureaucrats to determine what information and opinions are valid and safe.
The Supreme Court will hear Missouri v. Biden, a case involving what lower courts called a “coordinated campaign” by high-level federal officials to censor Americans based on the content of their speech. The Court granted certiorari, meaning that it will hear arguments from both sides during its 2023-24 session and rule on the case based on the merits.
The case was brought against federal agencies by the states of Missouri and Louisiana, a web-based news organization, a healthcare advocate, and three doctors.
There has been a flurry of activity on this case in recent months. In July, U.S. District Court Judge Terry Doughty issued an injunction against numerous federal agencies and officials. In his 155-page opinion, he stated:
“This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country. Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’ The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign.”
On Sept. 8, the U.S. Court of Appeals for the Fifth Circuit weakened Doughty’s injunction, removing many of those barred from contacting social media companies. One of the agencies removed from the injunction was the Cybersecurity and Infrastructure Security Agency (CISA).
Following that ruling, the Supreme Court agreed to hear the case but before it did so, the Fifth Circuit agreed to reevaluate whether CISA should be added back to the injunction. On Oct. 3, it did exactly that, finding,
“CISA was the ‘primary facilitator’ of the FBI’s interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover ‘hack-and-leak’ content. Second, CISA’s ‘switchboarding’ operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, ‘[s]omething more.’
CISA used its frequent interactions with social media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had ‘switchboarded’ was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment.”
Last Friday, the Supreme Court stated it would hear the case on emergency appeal from the Biden administration. The administration also petitioned that the Court issue a stay on the injunction until the Court could hear the case. The Supreme Court granted that stay, to the dismay of Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito.
All three wanted to keep the injunction in place, with Justice Alito writing in a dissent to the majority decision,
“This case concerns what two lower courts found to be a ‘coordinated campaign’ by high-level federal officials to suppress the expression of disfavored views on important public issues. To prevent the continuation of this campaign, these officials were enjoined from either ‘coerc[ing]’ social media companies to engage in such censorship or ‘active[ly] control[ling]’ those companies’ decisions about the content posted on their platforms. Today, however, a majority of the Court, without undertaking a full review of the record and without any explanation, suspends the effect of that injunction until the Court completes its review of this case, an event that may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.”
The justices stated that the government’s argument of irreparable harm due to the injunction was faulty. Alito also claimed the injunction does not stop the government from carrying out any of its necessary functions.
“The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?” Alito questioned.
“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”
The Supreme Court deciding to hear this case is a major win for free speech because it elevates the issue into the public eye regarding the widespread actions of government officials to censor the speech of Americans and to control the policies of social media companies. According to previous rulings and a House subcommittee finding, the government has unquestionably, and brazenly, violated the First Amendment by telling social media companies to remove posts that the government didn’t approve.
That’s called tyranny.
The government cannot be allowed to censor content or Americans’ opinions.
Many of the posts, particularly those around COVID-19, were actually true, and what the government was telling Americans about virtually every aspect of COVID-19 was either incorrect or a blatant lie. It censored speech, ideas, and potential medical solutions that should have been debated, not silenced. By forcing social media companies to violate the First Amendment, U.S. federal agencies put Americans in more danger, not less.
This whole idea that the U.S. government and its unelected bureaucrats need to act as a Ministry of Truth to protect American citizens from “misinformation” and “disinformation” or their own belief system is more in line with the Soviet Union and the Chinese Communist Party than a free America whose cornerstone principle is the First Amendment, which codifies our God-given rights to exchange information, to freely associate, and to follow the dictates of our religious beliefs and principles.
This is a fateful moment for our country, and the Supreme Court must get this one right — guided by the Constitution, not by the government’s fear-mongering about how the American people are too stupid to use their own minds to decide for themselves. If our Justices don’t, they will have told the government that the Constitution isn’t worth the parchment it was first written on and bureaucratic tyrants will be loosed to rule exactly like Communist China and other totalitarian governments.
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