Justice Jackson’s ‘Hamstringing’ Comment Wasn’t Her Worst – The Federalist

Following Mondays Supreme Court oral argument in the social media censorship case Murthy v. Missouri, outraged free-speech advocates rightfully excoriated Justice Kentanji Brown Jackson for worrying that the First Amendment will hamstring[] the government in significant ways in the most important time periods.

Given that hamstringing the federal government was precisely the purpose of the Bill of Rights, Justice Jacksons comment laid bare the fundamental disdain she and other politically liberal justices hold for the classically liberal freedoms our Constitution protects.

But even worse than Jacksons hamstring comment was something she said a half-dozen sentences later.

So can you help me? Because Im really Im really worried about that because youve got the First Amendment operating in an environment of threatening circumstances from the governments perspective, Justice Jackson said to Louisiana Solicitor General Benjamin Aguiaga. Why couldnt the government communicate with social media companies then? Jackson queried.

Aguiaga, on behalf of the respondents, the states of Louisiana and Missouri, and several individual plaintiffs who had been censored on social media, countered that the government could communicate with tech companies and share truthful information with them. But in doing so, the government must comply with the First Amendment, which means federal officials cannot ask Big Tech to censor third parties.

Lost in this exchange, however, was the horror of Justice Jacksons premise that the government outreaches would depend on federal officials perspective of threatening circumstances.

Five years ago, that proposition might not have seemed so shocking because Americans hadnt yet lived through the dual outrage of near-universal capitulation to the governments requests for censorship and the wrongheadedness of the federal governments perspective of threatening circumstances. Absent that lived experience, it might have been possible to imagine the government would only solicit Big Techs cooperation when truly faced with threatening circumstances, or that the social media companies would refuse to remove third parties posts, absent a sincere danger.

However, the 20,000-plus-page record in the Murthy v. Missouri case revealed that the governments perspective of threatening circumstances can be both dangerously wrong and politically motivated.

For instance, the federal government viewed anything prompting vaccine hesitancy as threatening public health. It also maintained that masking and school closures were necessary to protect Americans against Covid. These perspectives of threatening circumstances flowing from the pandemic led the government to demand that social media companies block users and posts discussing adverse effects of Covid shots or arguing against masking and school closures.

But the government was wrong about all of it, and those censored were right. Had the government not successfully silenced such speech, Americans would have been better armed with facts to make important health and public policy decisions.

Unlike the censorship of Covid-related information, the blocking of the New York Post and articles and posts about the Hunter Biden laptop story flowed not from the governments supposed perception of threatening circumstances although some federal officials likely also saw Trumps reelection as threatening but from political motives.

Once again, the banned speech was true, and Americans were prevented from learning vital information before the election due to the governments efforts to persuade Big Tech to block supposed hack or leak material. (Turns out, the Hunter Biden laptop was no such material.)

Its shocking that Justice Jackson could posit the governments perspective of threatening circumstances should matter, given that the facts underlying Murthy v. Missouri perfectly illustrate the dangers of censorship.

Sadly, she was not alone in suggesting the government could ask, encourage, and even persuade social media companies to silence third parties legal speech, so long as there was no coercion. The word coercion appears nowhere in the First Amendment, however, with the framers instead prohibiting the abridgment of free speech.

The Louisianna solicitor general reminded the Supreme Court of that reality several times during his Monday argument, which led to another horrifying exchange with Justice Jackson: After noting that the top-line question is whether the government set out to abridge the freedom of speech, Justice Jackson countered, But thats not the test for First Amendment violations.

This flows from the plain text of the First Amendment, Aguiaga stressed.

But we have a we have a test, Justice Jackson replied.

Therein we saw the fundamental problem with Mondays argument, as Jackson and several of her colleagues became too buried in First Amendment jurisprudence to bother returning to first principles and the actual text of the amendment. The abridgment language is controlling and, if applied, provides the plaintiffs with an easy win.

Whether a majority of the justices will apply that textually based standard, as opposed to one of the several judge-made tests, however, remains to be seen.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalists senior legal correspondent. Margots work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prizethe law schools highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishmentsher dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.

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Justice Jackson's 'Hamstringing' Comment Wasn't Her Worst - The Federalist