They say bad facts make bad law. But bad hypotheticals make even worse law, especially when they come from a clueless set of judges considering the most important free speech case in years.
That thought repeatedly crossed my mind as I listened to the U.S. Supreme Court make a mockery of free speech in Monday’s arguments in the Murthy v. Missouri censorship case.
Make no mistake: The actions that led the attorneys general of Missouri and Louisiana to sue the Biden administration were not normal. They were unprecedented, both in the extremes to which government officials went in their effort to pressure tech companies into censoring viewpoints they did not like and in the way the companies submitted to the government’s pressure. To use White House official Rob Flaherty’s word, they became “partners” in an Orwellian scheme to remove speech the government deemed false, misleading, or, in a perfect reflection of our elites’ beloved new nanny state, “harmful” to society.
The institutionalists on the Supreme Court appeared not to care. They seemed more concerned about chilling the government’s ability to criticize media outlets that print stories they don’t like — something that, without attribution, Justice Elena Kagan said happens “thousands of times a day in the federal government” and which Kagan said she does herself. The institutionalists appeared more worried about a hypothetical of restricting law enforcement from informing a tech company (they always use the benign term inform) that people were using its platform to promote a teen suicide game.
Poor Benjamin Aguiñaga, the Louisiana solicitor general, had to deal with that and other absurd hypotheticals throughout the argument. At one point, Justice Samuel Alito came to Aguiñaga’s rescue, noting that “some of your most recent colloquy with my colleagues have gotten off into questions that I didn’t take it from your brief we — you think we actually need to decide in this case.” Alito correctly observed that “your principal argument was that whatever coercion means, it — what happened here is sufficient and that coercion doesn’t mean only — it doesn’t apply only when the government says do this, and if you don’t do this, there are going to be legal consequences when it says that in this same breath, but that it’s a more flexible standard and you have to take into account the whole course of the relationship regarding this matter.”
State Action
That point went missing throughout the Murthy argument. The lawyering did not help. I’ve faced my share of hostile panels, so I sympathize with Aguiñaga. But he did not rise to the occasion. He got pulled down a rabbit hole with hypotheticals that he could not win. He failed to mention that the “state action” question — that is, the question of whether censorship by a private technology company should be held to constitutional scrutiny because it is traceable to the government — is not the end of the inquiry. Even if the plaintiff shows that private action constitutes state action, he or she must still show that the challenged action violates the Constitution.
That is easier said than done. Take the hypotheticals that Justices Kagan and Ketanji Brown Jackson offered. No judge would find the removal of a teen suicide video to violate the First Amendment, or any other law, because the First Amendment does not protect incitement or speech integral to criminal conduct. For the same reason, no judge would find the removal of terrorist recruitment videos, or child pornography, to violate the First Amendment. Indeed, Congress gave tech companies the power to remove such content in Section 230 of the Communications Decency Act of 1996.
The state action doctrine matters in this case because the challenged action — the removal of speech based on its viewpoint — is so noxious. It is precisely what the founders drafted the First Amendment to prohibit. It is always subject to strict scrutiny especially when, as here, it involves matters of public concern, including public health policy.
That is why Kagan and Jackson had to create strawman arguments based on extreme examples involving speech that gets less (or no) protection under the First Amendment. And while Aguiñaga obliged them, he did so in a way that left several of the other justices, especially Amy Coney Barrett, confused about what standard he was discussing.
Deference to Lower Court
Aguiñaga also failed to emphasize the key point of how the lower courts decided this matter: a preliminary injunction issued after extensive discovery that generated a massive factual record and a detailed opinion that the 5th Circuit largely affirmed in a 3-0 opinion. Appellate courts usually show great deference to such decisions.
Aguiñaga should have mentioned that. He could have evaded the bizarre hypotheticals thrown out by Kagan, Jackson, and Sonia Sotomayor by explaining that those facts would result in a different factual record that would likely yield a different result.
In fact, let’s be honest: Those records wouldn’t exist because nobody would file those lawsuits. The attorney general of Louisiana certainly wouldn’t sue the federal government for trying to combat the circulation of teen suicide videos. Nor would the Louisiana AG sue the federal government for telling Big Tech that “you are hosting a lot of terrorist speech, which is going to increase the chances that there’s going to be some terrible harm that’s going to take place,” another absurd hypothetical Kagan proffered.
Removing Entire Viewpoints
The states’ involvement made this unique. What also made this case special — the reason Judge Terry Doughty issued his opinion on Independence Day — was the fact that the federal government was not targeting specific content that it could show posed an imminent threat of harm (like the terrorist videos or teen suicide videos in the justices’ hypotheticals) but was pressuring Big Tech to remove entire viewpoints about matters of public concern. And not just any viewpoints but those that disagreed with, or merely questioned, the government’s viewpoint on certain topics. In other words, the government was pressuring the tech companies to silence dissent.
To his credit, Aguiñaga tried to make that point a few times, but he did not do it nearly enough. Like the lawyers in the NetChoice cases, he also failed to challenge the justices’ casual use of the term “misinformation” and their assumption that tech companies are only censoring the “bad stuff” that appears online (whatever that means).
That is one of the most troubling aspects of these cases. After all, what is “misinformation”? In the context of public health, I assume the Supreme Court would say anything that public health officials say is false, misleading, or harmful.
But why should the government get to define what is true and what is false? Why should the government get to define what speech is misleading? Why should the government define what speech is harmful?
Those should be the central questions in these censorship cases. That is why the Missouri and Louisiana AGs filed this case. After all, speech that the government calls “misinformation” — and which it has successfully pressured Big Tech to block — often turns out to be true. Take, for example, the authenticity of Hunter Biden’s laptop and the efficacy of the Covid-19 shots.
That is why the Supreme Court has never required that speech be true to be protected by the First Amendment. It has also rebuffed efforts to reduce the legal protection given to offensive (or some would say harmful) speech, including obscenity. Indeed, although obscenity is widely assumed to be unprotected by the First Amendment, the constitutional analysis is more nuanced.
A Coming Destructive Constitutional Decision?
The Murthy argument showed a Supreme Court that is headed in a very different direction. Justices Alito and Neil Gorsuch were the lone bright spots. They were the only ones who asked probing questions of both sides and seemed to care more about protecting the rights of ordinary Americans than unnamed federal bureaucrats.
Following Justice Antonin Scalia’s death, Justice Clarence Thomas has also become a leading voice for the court’s originalists, even during oral argument, a practice he once seemed to disdain (I was there on Feb. 22, 2006, when Thomas asked a question in Holmes v. South Carolina; he did not ask another question until 2016).
Of course, there may still be a way to convert the court’s three leftists back to the free speech side of society. Just a few years ago, in Manhattan Community Access Corporation v. Halleck, Kagan took the side of free speech when dissenting from a decision written by Justice Brett Kavanaugh that ratified a private company’s refusal to broadcast a controversial documentary. Perhaps the leftists would change their tune if it was Donald Trump’s White House that was pressuring tech companies to remove the speech of their political opponents.
What if Google decided that abortion is murder, and harmful to women who go through it, so it decided to remove speech that promotes abortion and abortion rights from YouTube? Would Kagan really have no problem with that? Would she be OK with Google removing videos of her criticizing the Dobbs decision from YouTube?
Or suppose Trump wins the 2024 election and his administration takes a hard stand against transgenderism. Under government pressure, Google decides that trans ideology is dangerous and harmful to children (it could cite plenty of evidence for support, of course) and says pro-trans videos should be removed from YouTube. That’s fine? We are supposed to believe that Kagan, Sotomayor, and Jackson — not to mention untold numbers of Democrat-appointed judges across America — would go along with that?
I think not. Aguiñaga should have said so. Instead, he showed little resistance to a hostile bench that we knew was coming and that could render one of the most destructive constitutional decisions since the 19th century.
