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Biden Administration Takes First Amendment Assassination Attempt To The Supreme Court

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Image Creditaiva. / Flickr / CC by 2.0, cropped

On Sept. 14, the Department of Justice made an emergency Supreme Court appeal to keep the feds controlling what Americans read and see online.


By Wednesday, Missouri v. Biden plaintiffs must respond in the Supreme Court to Biden administration claims that federal bureaucrats should get to filter everything Americans say via the internet for the sake of “national security.”

On Sept. 14, the Department of Justice (DOJ) made an emergency Supreme Court appeal to avoid lower court injunctions preventing the White House and federal agencies including the FBI from telling internet speech monopolies which keywords, posts, and accounts to suffocate. The court granted the appeal the same day, pausing lower-court injunctions stopping the federal government from holding a gun to internet monopolies’ heads to tell them what ideas to choke from the online public square.

The Biden administration didn’t contest any of the more than 20,000 pages of court documents showing essentially every major federal agency pressuring social media monopolies to take down ideas powerful Democrats don’t like or face federal lawsuits, investigations, and the removal of their monopoly powers.

Instead, it argued that obeying the First Amendment “imposed unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public health information at platforms’ request.”

Every President But Biden Could Respect Speech and Still Fight Wars

As independent reporter Matt Taibbi noted Friday, the position of Biden’s Department of Justice is essentially that the First Amendment endangers national security: “only government action against protected free speech remained barred by this injunction. The Biden administration just told the world ‘grave and irreparable harm’ would result from such limitations.”

That would be news to Presidents Lincoln, Wilson, Roosevelt, and Reagan, to name a few wartime presidents who were limited by that same Bill of Rights the Biden administration can’t seem to fathom how to function within. If shutting down Americans’ ideas online is necessary to protect national security, government can do literally anything in the name of national security. This kind of argument is in the same category as New Mexico’s governor claiming that because she declared a public emergency, people don’t get Second Amendment rights.

Taibbi also notes that the DOJ flat-out lies to the Supreme Court, apparently attempting to obfuscate the law and the government’s constitutional duties with hysterical falsehoods.

In oral arguments in August, the government complained about activities they claimed were threatened, despite the fact that those activities — communications about ‘criminal activity or criminal conspiracies’ or posts that ‘threaten the public safety’ — were exempted by [Judge Terry] Doughty’s injunction. This argument visibly irritated appelate judges. In this application now, they’re complaining to Supreme Court judges about things they’re already allowed to do.

Lying to courts and the public seems to be a part of the administration’s strategy in this case. Missouri Attorney General Andrew Bailey, part of the plaintiffs’ legal team in Missouri v. Biden, pointed out the irony in an interview last week with Tracy Beanz: “It’s dripping with irony that the people who claim to be protecting us from misinformation are promulgating misinformation. I mean, that speaks to the dystopian, Orwellian nature of this vast censorship enterprise.”

Lawsuit documents found federal officials not just muting specific ideas and persons online but also influencing platforms’ algorithms and content moderation policies. That means anyone using Facebook, Google, YouTube, X (formerly Twitter), LinkedIn, TikTok, Instagram, and the like today is limited in his or her communication by government officials’ behind-the-scenes pressure. Even if the Supreme Court rules for the plaintiffs, that will continue.

Government Doesn’t Have Speech Rights; Citizens Do

The Biden DOJ’s Supreme Court application claims that stopping government officials from censoring Americans online restricts officials’ freedom of speech. This is ridiculous, because government officials have no freedom of speech in their official capacities. Their official acts are constrained by multiple things, chief of which is the U.S. Constitution. The Constitution bans the federal government — acting through its multitudinous employees — from “abridging the freedom of speech.”

The president may of course use the bully pulpit, but he may not actually bully Americans. He cannot threaten companies or individuals with government harm if they disagree with him. He can speak, but he cannot compel. If his or any other government employees’ speech pressures companies or individuals, it violates the Constitution.

This is in fact one of the reasons the First Amendment exists: to protect Americans from the abuse of government power. There is a massive power imbalance between the government and the average citizen — even between the government and powerful companies! — and the First Amendment exists to help tip that balance toward the individual. It secures the rights of citizens against government officials, not vice versa.

The Biden administration has this so far backward that one wonders whether they’re making this Con Law 101 mistake on purpose to confuse the public, if not the court.

Anger a Bureaucrat, Lose Everything

Given the size of the federal government and its many means of making life miserable for those whose use of their freedoms conflicts with bureaucrats’ desires, in many cases a government official merely speaking in his official capacity carries an implied threat. Court precedents have recognized this.

Not only that, but throughout the emails and texts this case surfaced in discovery is not just implied but direct coercion. The president literally claimed social media companies’ initial refusal to implement all his demanded speech codes was “killing people.” He threatened to hold Mark Zuckerberg criminally liable.

The White House press secretary threatened to erase the companies’ entire business model and cost them billions by “revisiting Section 230.” Myriad emails show the companies’ leaders experienced federal demands as coercion.

People aren’t stupid. They see thousands of prominent examples of government flexing its power over noncompliant individuals, like the Federal Trade Commission deciding to investigate Elon Musk for a tweet after he bought Twitter and then more recently the Justice Department going after another of his companies for allegedly not hiring enough foreigners. Those are ridiculous lawfare exercises, and they will cost Musk millions.

The Administrative State Supercharges Government’s Coercive Power

Smart people and companies without the millions to withstand unhinged bureaucrats’ fury — or the desire to waste millions on such an effort — keep their heads down and their mouths shut. One could mention many more shock-and-awe efforts by federal agencies that have similar effects.

Those include the FBI’s surveillance of conservative Christians — about which its director lied to Congress — and its raids on peaceful pro-lifers in front of their kids. They also include the U.S. Department of Education opening a “civil rights” investigation into journalist Chris Rufo in August for allegedly using an accurate pronoun.

There are more than 185,000 pages in the Federal Register. It’s impossible for normal Americans to comply with effective laws that voluminous. That makes every American guilty before being proven innocent at great expense, a de facto criminal whose crimes are just waiting to be found by a motivated government official. Bureaucrats have the power to unilaterally charge, investigate, prosecute, and declare guilty anyone they decide to target, all before the matter reaches a court of law.

This gives federal officials coercion power simply through “asking” for something. A person with the power to ruin your life because you made some non-PC remark a bureaucrat thinks could violate Title VII is asking for a favor. You wouldn’t want him to get mad and start looking for all the felonies and thought crimes you’re surely guilty of, would you? Better to just comply.

My Thoughts Don’t Belong to the Government

This is how Democrats are using the incredible power of government to silence their political opponents. So if we needed strong, large, nearly unlimited First Amendment protections centuries before we accrued a massive government able to crucify anyone it sets its sights on over something as little as a non-PC opinion, today’s Americans need huge speech protections even more now that our government has so much more power than when the First Amendment was enacted.

Imagine if Donald Trump had used his presidential power to erase from the internet claims the 2020 election was fair and accurately tabulated. Suppose his justifications for this were the same as the Biden administration’s are now: protecting the nation’s “cognitive infrastructure,” “national security,” and “election integrity” from “foreign interference,” “misinformation,” “disinformation,” and “malinformation.”

Not only would every single legacy news corporation lose their lids over this kind of totalitarian behavior, but Trump would have been sued to the moon and back and lost in every court at least as fast as his 2020 election cases were tossed. Biden deserves no less from not just the Supreme Court, but from every American and institution in this country.

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