Professor Jonathan Turley has concerns about the fate of the First Amendment based in part on the oral argument in Murthy v. Missouri. He writes:
In Murthy v. Missouri, the 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 “killing people” 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.
Biden’s 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 emergencies claimed 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 “tell them to take it down.”
I trust that Justice Jackson’s views will fail to become the law of the case. To borrow a resonant phrase that fit this context, her views pose a clear and present danger to the First Amendment. If the Murthy plaintiffs lose in the Supreme Court, it may be on technical ground such as standing and the Court may think it is limiting the damage to the First Amendment in so doing. However, I fear the Court’s blessing of the Censorship Industrial Complex would have the same effect as its express adoption of Jackson’s anomalous views.
Regardless of the outcome, I found the unreality of the oral argument maddening by itself. The Court and counsel for the administration all seemed to be operating in a different universe — one in which President Joe Biden represents the kindly voice of reason instead of the heavy hand of state power. Matt Taibbi captured the unreality in his subscribers-only Racket News column “Why Government is Always the Most Dangerous Source of Misinformation.” Taibbi has now made his column accessible via the video below.
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