The right to shout “BS” during a pandemic

I found the oral argument of the case now styled Murthy v. Missouri this past Monday to be utterly demoralizing. As soon as the oral argument concluded I rashly hazarded my assessment that it portends a victory for the massive censorship-industrial complex represented by the Biden administration. My assessment was a hot take based on the tenor of the argument.

The argument seemed to me to reflect a fantasy world. It was unreal. In the case argued by Biden administration, the big sticks from the feds were simply here to lend a helping hand to their friends in social media. They all got along beautifully. No problem! The misinformation promoted by the government went unmentioned. The government appeared only as our benefactor.

“My biggest concern,” said Justice Jackson, “is that [plaintiffs’] view has the First Amendment hamstringing the government in significant ways.” She only wants to leave government censors free to persuade their social media partners to do their bidding. You got a problem with that?

It used to be a punch line to a joke, but this is the idea. As Ronaldus Magnus put it: “I think you all know that I’ve always felt the nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”

I may well be wrong in my assessment. I was reading the omens of the give-and-take in the argument like a Roman soothsayer examining entrails.

I wondered how other observers heard the argument. At NRO, attorney Brent Skorup suggests that Murthy represents “The Beginning of the End for the Censorship-Industrial Complex[.]” The subhead of his column asserts: “In oral arguments this week, Biden-administration defenses of its Covid-era policy of leaning on private entities to police public discourse appeared practically indefensible.” True — but his column provides no evidence whatsoever from the oral argument.

James Bovard also comments in the New York Post column “Will federal censorship be the pandemic’s biggest legacy?” He has his ear closer to the ground of the Supreme Court courtroom than Skorup:

Monday’s wrangling focused on the peril of disinformation and misinformation — as defined by Uncle Sam.

There was no recognition that government censorship was to blame for some of the biggest follies of the COVID pandemic.

Schools would not have been shut down for so long if the government hadn’t suppressed experts and others who correctly explained that COVID posed scant risk to young children and padlocking schools would not keep kids immune from infection.

Some of the justices sounded like they learned all they knew about this controversy from recent overheated pieces on the perils of disinformation in The Washington Post and New York Times.

This was especially problematic since some of those articles could have been written by the most voracious censors in the land.

Bovard fears that the Court will work a twist on one of Justice Holmes’s famous lines: “There is no right to shout ‘BS’ during a pandemic[.]”

As the argument proceeded I was thinking about Matt Taibbi, whose work on the Twitter Files helped expose the nightmarish extent of the censorship-industrial complex. Yesterday Taibbi offered his despairing take on the argument in the subscribers-only Racket News post “The First Amendment Takes a Beating in the Supreme Court.” He quotes Justice Jackson asking if the lawyer for plaintiffs could help sort out her brain-teasers involving government restraint:

“Can you help me?” Yes, I would love to help you, Justice Jackson, to a less challenging line of work… Hamstringing the government, Good God!

That a line about “the First Amendment hamstringing the government” was uttered by one Supreme Court Justice is astonishing enough. Listening as none of the other eight pointed out that the entire purpose of the First Amendment is to “hamstring” government from interfering in speech was like watching someone drive a tank back and forth over Old Yeller. I needed a bite-stick by the end of the hearing.

A lot of us who’ve spent the last years working to expose the federal government’s myriad new content control bureaucracies had high hopes this case might stop some of the bleeding on the civil liberties front. After listening to Jackson’s “Can you help me?” rant, the game seems up (at least for now) at the judicial level.

We’ve been had. I wondered last fall why the federal government didn’t just take the mild rebuke they received from the Fifth Circuit Court of Appeals and move on. Now I see the benefit in going to the high court. The government is on the precipice of gaining explicit permission to fully re-charge its censorship machine, potentially leaving this new arm of the surveillance state more empowered than before.

Taibbi writes in his penultimate paragraph:

Murthy already represents a major public relations victory for the Executive Branch. After roughly two years in which momentum for shutting down government censorship programs seemed to be gaining, and episodes like [Dr. Jay] Bhattacharya’s punctured the myth that such bureaucracies only targeted “misinformation,” [Monday]’s hearing will help restore the basic narrative that the activities revealed earlier in this suit and in the Twitter Files was little more than good-faith efforts by a concerned government trying to stop “harm” in a unique historical emergency. As Brown Jackson put it, “What would you have the government do?”

Taibbi’s take represents a worst-case scenario. His fears may be overblown, but he heard the argument more or less as I did.

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