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Supreme Court Justice Kentanji Brown Jackson wasn’t happy about arguments involving social media censorship. She thought the First Amendment was being used too broadly and that it could “hamstring government”. Republican attorneys general of Louisiana and Missouri filed suit May of 2022 regarding the Biden administration shutting down speech about the 2020 election and COVID.
Jackson sees restricted government
July 2023 U.S. District Court Judge Terry Doughty kept administration officials from contacting social media companies to have them remove content. A preliminary injunction was issued in the Murthy v. Missouri case.
That fall the U.S. 5th Circuit Court of Appeals upheld that decision for the most part. Emphasis was placed on the White House, surgeon general, FBI and the CDC.
Kentaji Brown Jackson grills LA solicitor general, says that because the govt can occasionally censor, they can also occasionally coerce:
KBJ: “Whether or not the government can do this… depends on the application of our First Amendment jurisprudence.
There may be… pic.twitter.com/LmoL7bZDQY
— System Update (@SystemUpdate_) March 18, 2024
Jackson thought certain speech shouldn’t be done
She talked with Louisiana Solicitor General Benjamin Aguiñaga. “There may be circumstances in which the government could prohibit certain speech on the internet or otherwise. Do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest in how the government has tailored its regulation?”
Aguiñaga allowed her that to a point. “Certainly your honor, at the end of every First Amendment analysis, you’ll have the strict scrutiny framework.” But there needs to be strict guidelines for this.
Jackson tried again
“So not every situation in which the government engages in conduct that ultimately has some effect on free speech necessarily becomes a First Amendment violation, correct?” Aguiñaga again conceded to her but the intent was wrong.
Jackson insists government needs to protect its people. That might mean taking down what she sees as harmful information. She continued,
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods. Some might say that the government actually has a duty to take steps to protect the citizens of this country. You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. In an environment of threatening circumstances, from the government’s perspective, and you’re saying the government can’t interact with the source of those problems.”
Government needs to broadcast the truth
Aguiñaga responded that the truth needs to be broadcast.
“Our position is not that the government can’t interact with the platforms there. They can, and they should in certain circumstances like that, that present such dangerous issues for society and especially young people. But the way they do that has to be in compliance with the First Amendment. And I think that means they can give them all the true information that the platform needs and ask to amplify that.”
Justice Samuel Alito didn’t like how the social media platforms were being put down. “The government is treating [social media platforms] like their subordinates.” There was plenty of communication between the government and Facebook and Twitter that he cited.
U.S. Principal Deputy Solicitor General Brian Fletcher told Alito that there was plenty of pressure.
“This was a time when thousands of Americans were still dying every week, and there was a hope that getting everyone vaccinated could stop the pandemic. And there was a concern that Americans were getting their news about the vaccine from these platforms, and the platforms were promoting … bad information.”
