The Supreme Court will hear a case that will establish a precedent on how far the government can go in stifling free expression on social media, a decision that conservatives are largely cheering.
The nation’s highest court declared on Friday that it had granted a writ of certiorari in a case that goes by several names and essentially pits the states of Louisiana and Missouri against the Biden administration. The states sought to limit the federal government’s encouragement of social media sites like Facebook, YouTube, and Twitter/X to censor distasteful viewpoints without giving them explicit instructions to do so, which would be a clear violation of the First Amendment’s guarantee of free speech.
Louisiana Solicitor General Liz Murrill hailed the judgment in a statement Friday.
“We are pleased to learn that the U.S. Supreme Court will hear this case, giving us yet another opportunity to defend the people from this assault on our First Amendment rights,” Murrill said.
“It brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment,” she said.
“We hope that the Supreme Court will agree that this gross abuse of power must stop and never happen again.”
Attorneys General Jeff Landry of Louisiana and Eric Schmitt of Missouri initially filed the lawsuit in May 2022. It addressed how the government pressured tech companies to censor specific information, especially regarding the COVID-19 pandemic and the effectiveness of and/or risks associated with vaccinations, mask wear, and other interventions.
The case began with a ruling on July 4 by U.S. District Court Judge Terry Doughty, who prohibited several federal agencies from interacting with businesses in a way that would be interpreted as “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
These agencies included the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases, the Centers for Disease Control and Prevention, the U.S. Census Bureau, the FBI, and the Department of Justice.
In September, according to The Associated Press, the 5th U.S. Circuit Court of Appeals in New Orleans ruled mostly in favor of the two states while it “tossed out broader language in an order that a Louisiana-based federal judge had issued July 4 that effectively blocked multiple government agencies from contacting platforms like Facebook and X (formerly Twitter) to urge the removal of content.”
Here’s where conservatives are divided on the decision to grant a writ of certiorari so that the case can be heard:
According to CBS News, Doughty’s injunction will be temporarily suspended until the matter is heard by the nation’s highest bench.
A dissenting opinion about the stay of the order was signed by three conservative justices on the bench: Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas.
“Despite the Government’s conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified,” Alito wrote in the dissent. “The majority takes this action in the face of the lower courts’ detailed findings of fact.”
“Applying our settled test for granting a stay, I would deny the Government’s application, but I would specify in the order that in the unlikely event that a concrete occurrence presents a risk of irreparable harm, the Government can apply for relief at that time, including, if necessary, by filing an emergency application here,” he continued. “Such an order would fully protect the ability of Executive Branch officials to speak out on matters of public concern.
“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.”
Justice Alito continued:
"Moreover, it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court’s unreasoned order." pic.twitter.com/Bwg0kdKGck
— Benjamin Weingarten (@bhweingarten) October 20, 2023
However, there is cause for celebration simply because the issue is even on the court’s docket.
Government agencies made it quite evident that they wanted some material suppressed, notably to COVID-19 but also about Hunter Biden’s doomed laptop, as we know from the “Twitter files” and “Facebook files.”
Is this being withheld? Is a nasty, irate, unelected government apparatchik threatening to bother you if you don’t follow their very clear instructions any different from a government order?
The Supreme Court will make that determination, and hopefully, it will be a simple one.
Undoubtedly, the administration will contend that its overt intimidation of these digital behemoths does not amount to de jure speech suppression; nonetheless, de facto intimidation by the government should be sufficient justification to forbid the actions that this case aims to stop.
Taking back our most valuable rights as Americans from nanny-state bureaucrats and pusillanimous tech companies—who know the only entity more powerful and monopolistic than themselves is the government—was probably only the beginning for conservatives and other free speech advocates on Friday.