The case brought by Missouri and Louisiana against the Biden admin concerning government collusion with big tech to censor misinformation during covid. She used the phrase, the first amendment "hamstrings" the government during emergencies. I couldn't find a clip on YouTube that's not padded with commentary, unfortunately. But it is troubling...as a supreme Court justice, one of your priorities is protecting the citizens from the government via the constitution, not the other way around.
You're talking about Murthy vs. Missouri (23-411).
Justice Jackson poses a hypothetical on page 94 about "a new teen challenge that involved teens jumping out of windows at increasing elevations" and then asks respondents' council if "is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?"
There are several back and forths on the following pages where respondents respond to the hypothetical and follow up questions are asked. Then Justice Jackson re-broaches the topic on page 116 and continues:
"So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods. I mean, what would -- what would you have the government do? I've heard you say a couple times that the government can post its own speech. But, in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done. And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So can you help me? Because I'm really -- I'm really worried about that because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can't interact with the source of those problems."
His response continues to page 119.
Someone is cherry-picking quotes and serving them to you so you will think "liberal Justices are against the first Amendment."
You're making my point for me. You read one sentence she said, and made a determination about the entire context of the argument, which , pointing this out, was the purpose of my original post. The relevant part is the entire oral argument.
Respondents council is in making an argument that suggests the government can NEVER have a compelling interest to suppress speech, which no one on the Supreme Court would agree with, and is what she is asking him to elaborate on. He clarifies this in his response from 115-119 that the government will always have compelling state interests arguments narrowly taylored to specific circumstances "on the back end".
> If the government has the power to override the First Amendment by declaring an emergency, we'll always have "emergencies."
If you simply listened to the oral arguments in this case, you would know that is not what is being discussed or suggested should happen in this case. They are debating what constitutes government coercion. The government can asks, suggest, encourage, etc, but it cannot coerce. Facebook as a private entity can censor posts however it wishes (editorial discretion / freedom of the press). If the government asks Facebook to censor posts it is already censoring anyways, is that coercion? That's what this case is debating. The nuance of this case is being stripped away, and being served to you as "conservative voices are being silenced" and "liberal justices don't want you to have 1st Amendment protections" when nothing could be further from the truth.
> even if state interests are "narrowly tailored," the government will always tailor the situation to match.
The opposite of this is also a perverse incentive: anytime anyone says anything and they receive push back, they can simply claim a 1st amendment violation and ALWAYS win, as though nuance and context somehow don't matter. What if the slight suppression of one persons' 1st amendment rights would alleviate the suppression of millions of other peoples' 1st amendment rights?
> Oceania has always been at war with Eastasia.
Its interesting that you chose this quote because, the same way that you clearly haven't read the minutes of this case, you probably haven't read 1984 either, but are just cherry-picking quotes from it. Winston remembers being at war with Eurasia and not Eastasia. But if the propaganda machine just gives people short snippets like "Oceania has always been at war with Eastasia" then that becomes truth. Just like if the propaganda machine feeds you that "this is about a pandemic where the government lied and censored people" then you don't have to actually read the minutes of specific court cases.
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Another point is that you're implying that the pandemic was the "emergency". But the emergency for you is that "the government lied and censored people" during the pandemic. But by your logic, this can be used to "override the first Amendment". Which is what seems to be happening in NetChoice vs Paxton (22-555) and Moody vs NetChoice (22-277). These are being presented in the media that users' 1st Amendment rights on these platforms are being violated but what is really happening is there are interest groups in the government that are trying to force social media companies to host content the companies do not agree with. This is a 1st Amendment violation, namely, a violation of the freedom of the press. You are being convinced to participate in and argue for the thing that you are telling me you are the most worried about.
> If the government asks Facebook to censor posts it is already censoring anyways, is that coercion?
That's an odd thing to say on a case where the government did absolutely coerce Facebook.
> The opposite of this is also a perverse incentive: anytime anyone says anything and they receive push back, they can simply claim a 1st amendment violation and ALWAYS win, as though nuance and context somehow don't matter.
Heh, no. The Supreme Court has already ruled on what speech is legal and illegal.
> What if the slight suppression of one persons' 1st amendment rights would alleviate the suppression of millions of other peoples' 1st amendment rights?
That what if doesn't matter in a case where the government suppressed the truth.
But anyway, that is a valid case, but you'll have to come up with a more specific example than that. The only case I can think of where that might happen is when a government official uses his First Amendment rights to shut down the speech of people, and then it is obvious that the government official is wrong.
> Just like if the propaganda machine feeds you that "this is about a pandemic where the government lied and censored people" then you don't have to actually read the minutes of specific court cases.
Again, I read it.
> These are being presented in the media that users' 1st Amendment rights on these platforms are being violated but what is really happening is there are interest groups in the government that are trying to force social media companies to host content the companies do not agree with. This is a 1st Amendment violation, namely, a violation of the freedom of the press. You are being convinced to participate in and argue for the thing that you are telling me you are the most worried about.
It is only a First Amendment violation if companies are people. IIRC, that's not a good thing.
So "being convinced to participate in and argue for the thing that you are telling me you are the most worried about"? Not at all. I want companies to lose their personhood. Especially these MASSIVE companies that basically control the digital town square.
And I own a company, by the way. Do not assume things about me.
Anyway, wouldn't these companies refusing to post content be the very example you gave earlier?
> What if the slight suppression of one persons' 1st amendment rights would alleviate the suppression of millions of other peoples' 1st amendment rights?
Isn't that the exact situation? The First Amendment rights of one person, a CEO, suppresses the First Amendment rights of millions. So yeah, I agree with you on the example, but it still means you're wrong about the cases.
> That's an odd thing to say on a case where the government did absolutely coerce Facebook.
But that's what this case is about. So "absolutely" is an incorrect word. The Supreme Court is currently deciding this.
> Heh, no. The Supreme Court has already ruled on what speech is legal and illegal.
I don't know how this statement refutes what I said. See NRA vs Vullo. Just claim a 1st Amendment violation to avoid legal investigations. You're also implying that law doesn't change somehow.
> you'll have to come up with a more specific example than that.
Why? You provided a perfect example. Meaning there are scenarios where suppression is justified.
> It is only a First Amendment violation if companies are people.
No. Newspaper companies are not people and have 1st Amendment protections. They have editorial discretion over how and what is printed in their newspapers. This is content curation. Social media companies also have editorial discretion over the content they host and how that content is presented to its users. Again, this is what is being litigated in NetChoice v Paxton and Moody v NetChoice. The government of Texas and Florida are saying that social media sites must host content they find politically distasteful. That would be like the government saying the National Review has to print a pro-Biden op-ed, or that they cannot remove comments written by users at the bottom of articles.
> companies that basically control the digital town square.
They do own the digital town square, in a free marketplace. It's being suggested to you that these ideas are being "censored" but private entities cannot censor, only the government can. What is really happening is that these ideas are unpopular, and are losing in a marketplace of ideas. And so certain groups are appealing to the government to interfere into a free marketplace to force unpopular ideas on people.
> And I own a company, by the way. Do not assume things about me.
No where in my responses did I suggest you don't own a company.
> Isn't that the exact situation?
Again, no. You don't have a constitutional right to make a social media platform host what you say. You have a right to say it if you want to, but they have 1st Amendment freedom of press protections. To be clear, I'm not saying I think this is a good idea, and things should be this way, I think things should largely be un-moderated on the internet, I'm simply stating what I understand to be true about the rules of the game that is currently being played.
One last comment because I'm not sure I articulated it well: You said that if emergencies are used as an excuse to curtail 1st Amendment rights, there will always be emergencies. In your mind, the pandemic was the emergency. And suppression of information about things related to the pandemic online was the curtailing of 1st Amendment rights. If what you're saying is true, then logically, there will always be another "emergency" and what I am asking you is, how do you know that "a pandemic where the government lied and censored people" isn't simply the next emergency? This concept is being fed to people and they are supporting the idea of curtailing freedom of the press' 1st Amendment rights under the disguise that 1st Amendment freedom of speech rights are being infringed. If what I am saying is true, and no such free speech violations are occurring, but instead free press violations are occurring, then you are participating in the very suppression you are telling me you are afraid of because of a contrived "emergency".
