Justice Ketanji Brown Jackson Has a Horrifying View of the First Amendment

News & Politics

While many Americans were horrified at the Biden administration’s efforts to pressure social media platforms to censor speech that it deemed harmful “disinformation,” the Supreme Court doesn’t appear to be embracing the idea that it can limit the government’s contacts with those platforms.

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The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election. 

A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment’s right to free speech by “coercing” or “significantly encouraging” social media sites’ content-moderation decisions. The judge issued an injunction restricting the Biden administration’s contacts with platforms on a variety of issues, though that order has been on hold. 

During oral arguments on Monday, the justices seemed skeptical of a ruling that would broadly restrict the government’s communications with social media platforms, raising concerns about hamstringing officials’ ability to communicate with platforms about certain matters.

Justice Ketanji Brown Jackson, whom Joe Biden nominated to the high court, had a particularly disturbing position on the issue.

“So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” she told Louisiana Solicitor General Benjamin Aguiñaga. “I mean, what would — 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.”

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“And so I guess, some might say that the government actually has a duty to take steps to protect the citizens of this country,” Jackson continued. “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.”

Jackson said she was “really worried about that” scenario because “you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems.”

First of all, the First Amendment does hamstring the government because it limits the government from “abridging the freedom of speech, or of the press,” among other things. That’s a feature, not a bug of the First Amendment. 

We can all agree that yelling “fire” in a crowded theatre is not protected speech because it poses an immediate and clear danger to public safety However, the problem with the Biden administration’s policy is that what it deems harmful can often be subjective, making such efforts prone to overreach and censorship potentially infringing upon individuals’ right to free expression. 

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However, Americans have every right to question the efficacy of the COVID-19 vaccines or openly discuss the side effects. More often than not, it seems that the speech that the government censored or suppressed turned out to be right in the end.

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