This month, the Supreme Court reviewed a trifecta of free speech cases that has government and civil libertarians alike on edge. While each of the cases raises an insular issue, they collectively run across the waterfront of free speech\u00a0controversies\u00a0facing this country. <\/p>\n
For some of us, what was most chilling from oral arguments were the sentiments voiced by justices on the left of the court, particularly Justice Ketanji Brown Jackson. The court may now be reflecting the shift among liberal scholars and politicians away from freedom of speech and in favor of greater government speech regulation. <\/p>\n
In my forthcoming book,\u00a0\u201cThe Indispensable Right: Free Speech in an Age of Rage,\u201d I explore the evolution of free speech in the United States, including the failure of the Supreme Court to protect free speech during periods of political unrest.\u00a0Although a new revolutionary view of free speech emerged at the founding of the republic, it was quickly lost due to the regressive views of the federal courts over centuries of conflicted decisions. <\/p>\n
We are now living through one of the most anti-free speech periods in our history. On our campuses, law professors are leading a movement to limit free speech under the pretext of combating hate speech or disinformation. A dangerous triumvirate has formed as government, corporate and academic interests have aligned to\u00a0push limitations of free expression. <\/p>\n
That triumvirate is now before the Supreme Court, which is looking at cases where government officials targeted\u00a0critics, dissenting websites\u00a0and revenue sources. <\/p>\n
What was disconcerting was to hear many of those same voices from our campuses echoed this week on the court itself. <\/p>\n
In\u00a0Murthy v. Missouri,\u00a0the court is considering a massive censorship system coordinated by federal agencies and social media companies. This effort was ramped up under President Joe Biden, who is arguably the most anti-free speech president since John Adams. Biden has accused companies of \u201ckilling people\u201d by resisting demands to censor opposing views. Even though the administration was dead wrong on many pandemic-related issues, ranging from the origin of COVID-19 to the efficacy of masks, thousands were banned, throttled or blacklisted for pointing this out. <\/p>\n
Biden\u2019s sole nominee on the court, Justice Ketanji Brown Jackson, has long been an enigma on the issue of free speech. That is why these oral arguments had some alarming moments. While her two liberal colleagues suggested that some communications may not be coercive as opposed to persuasive, Jackson would have none of it. She believed that coercion is perfectly fine under the right circumstances, including during periods like a pandemic or other national\u00a0emergencies\u00a0claimed by the government. When dangerous information is spotted on social media sites in such periods, she seemed to insist, the government should feel free to \u201ctell them to take it down.\u201d <\/p>\n
The sweeping quality of Jackson\u2019s remarks shows that the relativistic views of free speech may now have a new champion on the court. <\/p>\n
In a second case,\u00a0National Rifle Association of America v. Vullo, the court considered an effort by a New York regulator to discourage banks and insurers from working with the NRA.\u00a0Maria Vullo,\u00a0who ran New York\u2019s Department of Financial Services, allegedly used her office to pressure these businesses to cut off financial support for the nation\u2019s leading gun rights organization. <\/p>\n
As with\u00a0Murthy, the\u00a0Vullo\u00a0case captures one of the principal tactics used by the anti-free speech movement in attacking the advertisers and businesses of targeted individuals and groups. One such government grant resulted in a list of the\u00a010 most dangerous sites for advertisers to avoid, a list that happened to consist of popular conservative and libertarian\u00a0news sites.\u00a0 <\/p>\n
The idea of a Democratic New York regulator targeting a conservative civil rights organization did not appear particularly troubling in oral argument\u00a0for some of the justices. In fact, the views expressed by some of the justices were appallingly dismissive. Justice Elena Kagan asked, \u201cif reputational risk is a real thing, and if gun companies or gun advocacy groups impose that kind of reputational risk, isn\u2019t it a bank regulator\u2019s job to point that out?\u201d\u00a0 <\/p>\n
In the third case,\u00a0Gonzalez v. Trevino,\u00a0the court was considering the arrest of Sylvia Gonzalez, a 72-year-old former councilwoman in Castle Hills, Texas. She earned the ire of the sheriff, mayor and other officials with her criticisms of their conduct. She was subsequently charged with inappropriately removing a government document (a citizen petition) that she had mistakenly put with other papers. The charges were later dropped. The case smacked of retaliation \u2014 there is no evidence that anyone else has faced such a charge in similar circumstances.\u00a0 <\/p>\n
The case resonates with many who believe that the legal system is being politically weaponized in this country.\u00a0Many of us are appalled by the Gonzales case.\u00a0However, in this case, the support for the government\u00a0seemed to come from\u00a0the right of the court, including the author of a prior decision limiting such challenges, Chief Justice John Roberts. <\/p>\n
The free speech trifecta, therefore, covers the three areas of greatest concern for the free speech community: censorship, blacklisting and weaponization. The resulting opinions could curtail or magnify such abuses. For example, the social media case (Murthy) seemed to trouble the justices as to where to draw a line on coercion. If the court simply declines to draw such a line and rules for the government, it will likely fuel new censorship efforts by federal agencies. <\/p>\n
What is disconcerting about the views expressed by Justices Kagan, Jackson and Sonia Sotomayor in two of the cases is not that they are outliers. The problem is that liberal justices long acted as the bulwark for free speech on the court. They are now viewed as the weakest link, often dismissive or hostile to free speech arguments. <\/p>\n
When Justice Jackson defends the right of the government to coerce speech, she follows a long legacy of speech relativists on the court, including the earlier Justice Robert Jackson. He had warned that the court needed to approach speech prosecutions with \u201ca little practical wisdom,\u201d so as not to \u201cconvert the constitutional Bill of Rights into a suicide pact.\u201d <\/p>\n
The current Justice Jackson seemed to channel the same practicalities over principle in stressing that \u201cyou\u2019ve got the First Amendment operating in an environment of threatening circumstances from the government\u2019s perspective.\u201d <\/p>\n
The view of speech as harm or violence is all the rage on college campuses, and also in many Western countries where free speech is in a free fall. France, Canada and the United Kingdom now regularly arrest people for expressing hateful or controversial viewpoints. Those same anti-free speech arguments are now being heard in our own Congress and colleges in the U.S. <\/p>\n
It is not clear how the court will decide these cases. One fear is that it could retreat to blurry lines that leave us all uncertain about what speech is protected. In an area that demands bright lines to prevent the chilling effect on speech, such vague outcomes could be lethal. <\/p>\n
The government loves ambiguity when it comes to speech regulation.\u00a0It now may have found new voices on the left side of the court to join in the ignoble effort of combating free speech. That renewed effort to introduce \u201ca little practical wisdom\u201d could mean a lot less freedom for Americans.\u00a0 <\/p>\n
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School, where he teaches a class on the Constitution and the Supreme Court. <\/p>\n
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Read more: This month, the Supreme Court reviewed a trifecta of free speech cases that has government and civil libertarians alike on edge. While each of the cases raises an insular issue, they collectively run across the waterfront of free speech\u00a0controversies\u00a0facing this country Continue reading
\nFree speech hangs in the balance in 3 Supreme Court cases - The Hill<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"