During the oral arguments over the Biden vaccine mandates last week, two largely disconnected views emerged from the right and left of the Supreme Court. Conservative justices hammered away at the underlying authority of the Biden Administration to issue these mandates, particularly after President Joe Biden’s own Chief of Staff admitted that the agency rules were “workarounds” of his constitutional limitations. Conversely, the liberal justices used the “equity” aspects of an injunction to raise more emotive, if not apocalyptic, arguments on the dangers of Covid-19. That led Justice Elena Sotomayor to make a claim about children with Covid that even the Washington Post called “absurdly high” and worthy of “four Pinocchios.”
The incident raised a sensitive issue for some of us who oppose the massive censorship programs on Twitter and other social media platforms. Justice Sotomayor was spreading “disinformation” on Covid-19, so could she be barred from Twitter? As you might expect the answer is no, but that is precisely the problem with the corporate censorship embraced by many today.
The controversial statement of Justice Sotomayor could not have come at a worse time. She and her two liberal colleagues were arguing against substantial judicial review of the mandate orders in favor of extreme deference for the agencies. They argued that there was no time to waste in light of the dire crisis facing the country.
However, all three justices made claims that were challenged in terms of their accuracy. Justice Stephen Breyer, for example, declared there were “750 million new cases yesterday, or close to that.” He added that “is a lot. I don’t mean to be facetious.” It was not facetious, it was false.
Yet, Sotomayor’s claims were the most alarming:
“Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”
In an interview on Fox News, CDC chief Dr. Rochelle Walensky confirmed that there are actually fewer than 3,500 kids with the virus in hospitals.
The argument was viewed by many as part of what sounded more like a legislative than a judicial debate over the mandate. That was ironic given how Justice Sotomayor recently objected that the “stench of politics” followed her three new colleagues to the Court.
Yet, we all make mistakes in the heat of arguments and I do not believe for a second that Justice Sotomayor was intentionally misleading or duplicitous in making this claim.
That, however, leads back to the free speech question. If someone quoted Sotomayor’s false statement on Twitter, would they be flagged or banned? How about Sotomayor herself (assuming she even has a Twitter account)?
The answer is no.
Here is Twitter’s disinformation policy:
Content that is demonstrably false or misleading and may lead to significant risk of harm (such as increased exposure to the virus, or adverse effects on public health systems) may not be shared on Twitter. This includes sharing content that may mislead people about the nature of the COVID-19 virus; the efficacy and/or safety of preventative measures, treatments, or other precautions to mitigate or treat the disease; official regulations, restrictions, or exemptions pertaining to health advisories; or the prevalence of the virus or risk of infection or death associated with COVID-19.
Clearly, Justice Sotomayor’s statement was false. As the Washington Post stated, it was “absurdly” false. However, overstating the risks of Covid-19 is not considered “harmful.” The social media companies target skeptics, not zealots.
Conversely, if someone posted that the new variant was producing fewer cases, it would likely be flagged and blocked. That would be deemed too dangerous for Twitter readers to consider.
Twitter can ban people like Donald Trump based on “how [their statements] are being received and interpreted on and off Twitter.” Even sharing the views of people like Donald Trump can lead to a ban.
Of course, one could argue that wildly overstating the risk of omicron to children would “likely … impact public safety” by distorting both the public health crisis and potentially leading to the misapplication of scarce resources. Yet, Twitter is happy to let readers hash out the truth of such statements.
My point is not that Sotomayor should be banned from social media, but that this controversy shows why censorship is both unnecessary and biased. Free speech has its own corrective element. Indeed, Sotomayor’s statement was quickly corrected by critics.
We have seen various journalistic and scientific figures banned for expressing skepticism over pandemic claims from the origins of the virus to the efficacy of certain treatments. For example, when many people raised the possibility that the virus may have been released from the nearby Chinese virology lab (rather than the “wet market” theory), they were denounced as virtually a lunatic fringe. Even objections to the bias of authors of a report dismissing the lab theory were ridiculed. The New York Times reporter covering the area called it “racist” and implausible. Now, even W.H.O. admits that the lab theory is possible and Biden officials are admitting that it is indeed plausible.
The same is true with the debate over the efficacy of masks. For over a year, some argued that the commonly used masks are ineffective to protect against the virus. Now, the CDC is warning that the masks do not appear to block these variants and even CNN’s experts are calling the cloth masks “little more than facial decorations.”
These are questions that are still being debated, but censorship inhibits rather than helps us find such answers. The greatest danger to science (and, by extension, public health) is orthodoxy. It is better to have false claims, like Justice Sotomayor’s, than to block a free and open debate on such issues.
Yet, censorship is the rage today. Democratic legislators in New York want to criminalize disinformation about public health while a governor in Washington wants to criminalize disinformation about election results.
In the meantime, there is a steady call for greater and greater censorship. Free speech advocates are facing a generational shift that is now being reflected in our universities, where free speech principles were once a touchstone of the rule of law. As millions of students are taught that free speech is a threat and that “China is right” about censorship, these figures are shaping a new society in their own intolerant images.
Figures like Sen. Elizabeth Warren want companies to protect readers from dangerous proclivities in their reading choices. In a Senate hearing, Sen. Chris Coons demanded that companies impose a sweeping system to combat the “harm” of misinformation on climate change as well as other areas. He warned that “helping to disseminate climate denialism, in my view, further facilitates and accelerates one of the greatest existential threats to our world.”
Sen. Richard Blumenthal warned that he and his colleagues would not tolerate any “backsliding or retrenching” by “failing to take action against dangerous disinformation.” He demanded “the same kind of robust content modification” from the companies – the new Orwellian term for censorship.
The good news is that Justice Sotomayor will not be banned by Twitter. The better news would be that such tolerance would apply in the same way to justices and nonjustices, liberals and conservatives, skeptics and zealots. The solution to disinformation is more information. The solution is free speech.
“The New York Times reporter covering the area called it ‘racist’ and implausible.”
Do these people ever look back at what they write, then say to themselves: “I sure screwed up that one. I wonder what caused me to get it so wrong?”
“ and I do not believe for a second that Justice Sotomayor was intentionally misleading or duplicitous in making this claim.”
He had better believe it. She has been a firm believer in the most vile evil lying con-job of a political party that has ever existed in our Nation. The party I call, “The Anti-Democratic-Party.” Who are Anti-American Anti-Biology” (believing that folks can switch there sex. ( Man can become a woman. My rear-end they can.) The most “Anti-Christian-Believing” Party. Who still go by the name of Democrat. You will not find any democracy left in this party.
Something to consider which has nothing to do with the Supreme Court, OSHA, and the Biden ‘work around’: Most of the deaths associated with Covid19 are people older than 50 years of age. I believe this hasn’t been challenged by anyone, publicly or privately.
That is one helluva lot of Social Security money that won’t have to be paid out in the coming decades, which will allow the Trust Fund to last longer than previously predicted. Covid19 as a ‘solution’ to the Social Security funding crisis? I haven’t seen anyone write about it, anywhere. I wonder if I put it out on TWTR would it be banned?
Covid19 as a ‘solution’ to the Social Security funding crisis? — Richard Lowe
Covid19 as a ‘solution’ to the Social Security funding and many states’ and cities’ public pension crisis?
Fixed it for you… you deplorable conspiracy theorist. Have you gotten your jab yet? And boosters?
In the first paragraph, you incorrectly refer to Sotomayer’s first name as “Elena”. It’s Sonia.
Her opinion will affect the lives of 330 million people. That she’s basing her opinion in part on easily refuted, erroneous data is shocking. I assume some Ivy League clerk fed it to her. I if she did in fact rely on a clerk for the data, the clerk should be fired.
On the bright side, as Locke explained, one reason why free speech as a value is important is because it allows for the correction of error. Thanks to instantaneous communication technology, Sotomayer correctly got hammered for her erroneous language in real time The antidote to bad speech is good speech.
(I reveal this about myself only to explain “where I am coming from” and my frame of mind. For more than 15 years, while practicing with a larger metropolitan law firm, I had a “side-gig” as a contributing writer/editor for law-related and public reference books.) Accordingly, I closely followed not only SCOTUS decisions-but also oral arguments-for additional insight. I’ve noticed an increasing tend (in my opinion) with certain Justices to engage in declaratory and somewhat conclusory statements during oral argument, rather than elicit information from arguing counsel. Questions that appear to challenge counsel have the ultimate goal of clarifying or providing more insight/information into thr legsl positions of respective counsel. This also serves to keep the persuasive burden on the respective partiesvand their counsel, and may serve to provde fodder for a later decision if the elicited information is incorrect or misleading. IMHO, Soto,ayor could have avoided this entire controversy by merely asking counsel what the rate of pediatric infection/mortality was? (Also, I think a commenter noted that Gorsuch said, ” hundreds, thousands” but I think the actual SCOTUS transcript reflects that he said “hundreds of thousands”—although that may be corrected if in error…
Lin: The assumption is that Sotomayor made an innocent mistake, or was mislead by a clerk. The more cynical explanation is that she knowingly played to the emotions of the mob. Given that lying and emotional demagoguery seem to be the dominant MO on the part of Democrats, and that Sotomajor has been making absurd political comments fairly consistently, I’ll side with the cynics.
Giocon1 says:
“The more cynical explanation is that she knowingly played to the emotions of the mob.”
For this reason I have always been a Never Trumper. I was aghast how Trump played upon the emotions of the mob by encouraging his “Lock her up” chants. Very ugly.
“Yet, we all make mistakes in the heat of arguments and I do not believe for a second that Justice Sotomayor was intentionally misleading or duplicitous in making this claim.”
**********************************
We too easily presume the competence, truthfulness and good faith of strangers. And we always have.
Kudos to author, Malcom Gladwell, “Talking to Strangers” (2021)
Ooops “Malcolm.”
I find it incredible that all of the Justices didn’t have cheat sheets with at least the basic statistics.
Why. Why would those statistics enter into the constitutional decision. Can an agency in effect require the entire population submit to medical treatment.
It is up to the Government to prove they have the power. Those bringing suit have listed all the reason the government has failed to meet any standard.
Any of the justice supplanting their efficacy opinions, is counter the roll of the court.
To pull back and look at from a 30,000ft view. The People must participate in their own governance. This OHSA usurpation is a huge divergence from the Constitution. The role of SCOTUS is to protect the people from a government abusing their power.
I don’t disagree with a thing you have said, but as wrong as it is, it’s obvious at least some Justices are looking at factors that go well beyond the only issue that should be considered, namely does the government have this power regardless of any public health implications. That being the real world case, the very least we can expect is that they have actual facts in front of them.
Overall you are exactly right. There is no Pandemic Exception Clause in the Constitution. This is why no person who uses emotion and fear instead of logic and reason to make decisions that affect the entire nation should be allowed within 1000 feet of any position of responsibility.
“This is why no person who uses emotion and fear instead of logic and reason to make decisions that affect the entire nation should be allowed within 1000 feet of any position of responsibility.”
Hear, hear!
Currentsitguy says:
“This is why no person who uses emotion and fear instead of logic and reason to make decisions that affect the entire nation should be allowed within 1000 feet of any position of responsibility.”
For that reason I was a Never Trumper. I would never support a politician who leads chants of “Lock her up” without first having a trial. That call is irrational and purely emotional.
Jeff, so you agree that she should be tried for initiating “The Big Lie” Russia Russia Russia as well as Schiff and Smallballs for lies that they had proof?
Ballhere,
Who is “Smallballs”? You’ll have to forgive me that I am not cognizant of all the Republican name-calling of Democrats.
Jeff, please don’t change the subject. This will be the first time I agree with one of your posts concerning a trial. You agree all those who took part in the “Big Lie” Russia Russia Russia should be held accountable? That lie tore this nation apart for nearly 4 years, cost millions and a duly elected administration was impeached on the basis of that lie.
Margot,
If you know anything about me, you must know that I don’t engage in juvenile name-calling as you do nor will I swallow Trumpist lies. You and I will never see eye-to-eye what is and what is not the “Big Lie.” We will just have to content ourselves that this country is big enough so that we will never run into each other.
For what it is worth, Turley has never claimed that the Russian investigation was a “witch-hunt” or a lie. He supported the investigation. Moreover, he stated that Trump’s 1/6 conduct was Impeachable but that the Democrats rushed it without securing enough testimony. He called it a “snap impeachment.” Instead, Turley advocated that Trump should be censored by Congress.
So, it is clear that Turley is on my side of the line, not yours.
Considering I rarely listen to any speech and politician makes it neve really mattered to me. When evaluating anyone in or running for office, I look at one thing, the policies. If they make sense to me and align with my beliefs and values, I support them. If they do not, they can have the charming personality of Svengali and I don’t care. In the case of Donald Trump his policies on trade, border security, immigration, foreign policy, the obligations of NATO, China, and several other issues closely matched mine. The only two regrets I have is we should have leveled Iran and I’d have sooner seen the inevitable conflict with China start sooner rather than later before they have the change to continue to build their military. How a candidate comes across, or how crowds respond is pretty much the least important thing in the world in terms of evaluating a candidate or leader.
I know they are all psychopathic lying monsters. You have to be to aspire to high office, it comes with the territory without exception. Anyone who believes otherwise is either hopelessly naïve or delusional. The real question is does their psychopathy align with my interests?
Currentsitguy says:
“I know they are all psychopathic lying monsters. You have to be to aspire to high office, it comes with the territory without exception. Anyone who believes otherwise is either hopelessly naïve or delusional. The real question is does their psychopathy align with my interests?”
So ALL politicians are monsters? Very convenient to make a moral equivalence of all of them. Seems rather simple minded. Your cynicism would suggest that you suspect all politicians likewise regard the public as gullible craven morons who don’t care a whit about right or wrong as long as they pander to their constituents’ needs and desires. I would say that politicians and the public deserve each other!
Yes, I don’t think there is such a thing as a politician who actually cares about those they are elected to represent. To a one they are all morally reprehensible psychopaths, at least those who manage to get reelected. Over the last 250 years a system has evolved in which no other can survive, so yes, I suspect all, particularly those I myself voted for.
That is why I support policies, not people, since I know going into the voting booth every name on there is morally irredeemable.
You are overstating the problem as well as overgeneralizing. Many if not most politicians do state half-truths, but a few, like Trump, make up lies out of whole cloth.
Your Trump obsession blinds you from reality.
All politicians lie. If Joe Biden or Donald Trump told me the sky was blue I’d check outside to make sure it wasn’t purple. There is absolutely zero difference between the two. It’s what gets them elected. Could not care less. I expect nothing less. Again it comes down to policies, and whether or not they are executed. Nothing else matters.
I do resent being lied to by Trump. I am able to distinguish between politicians who spin the truth and pathological liars. We all can, but you do not want to acknowledge that Trump is a bald-faced liar- he does not attempt to disguise his mendacity.
Unlike you, I do not believe good ends justify bad means. I will not vote for a conman to serve my political interests. I am not that cynical.
Why would those statistics enter into the constitutional decision.
I haven’t listened to all oral arguments from other hearings, but those that I have listened to were relatively monotone from all the justices compared with what I heard in this one. Most striking was how demonstrative Sotomayor and Breyer were, not so much in their questioning, but in their appeal to emotion regarding what they touted as statistics. They seemed to have taken on the role of the solicitor to argue in favor of mandates and not to challenge either side to prove how mandates are or are not constitutional.
Please don’t quote Newsweek as though this is a reliable source of information. Justice Gorsuch didn’t say that the flu kills “hundreds of thousands” of people. Rather, he said, “We have flu vaccines. Flu kills—I believe—hundreds, thousands of people every year.” That’s clear from the audio recording. There may have been a transcription error, where the word “of” was incorrectly inserted between “hundreds” and “thousands.” But what he actually said was consistent with the reported flu fatality statistics. That can be verified by going to 1:49:35 here: https://www.c-span.org/video/?516920-1/justices-hear-case-vaccine-test-mandate
I find it incredible that all of the Justices didn’t have cheat sheets with at least the basic statistics.
When I heard her comments “I thought aren’t these justices supposed to rule according to the constitutionality of an act not by what they read in newspapers”? Why is this push for a vaccination that’s questionable and all rejections when the discussion for therapeutic’s is mentioned?
If Twitter bans Soto then I will ban Twitter.
Good.
This is what you get when you nominate someone that will “look at the law thru a prism of being a wise Latina rather than by looking at the CONSTITUTION for perspective. Imagine if Kavanaugh said he was looking at the law as a white rich guy or if Barrett said she would look at the law as a solid Christian. The Wise Latina is a legal lightweight, something nobody ever said about RBG or even Elena Kagan.
hullbobby: Spot on. “Diversity” and competence are not necessarily compatible. Unfortunately, the Democats have rejected meritocracy and competence. Even a brief glance at Biden’s administration proves that point.
I suppose you have to say Sotomayer wasn’t “intentionally misleading or duplicitous in making this claim.” We real people know she was lying through her teeth
Yes, it matters what she said, and more importantly, *the response* to what she said matters. Yes, the people who appointed her matter too, but we are past the time where prejudice can rule – principles are going to have to come first and be the focus. The modern dem party seems to be devoid of coherency or principle. In principle, she should be banned from Twitter, too, though I agree with most here that all social media censorship is lopsided ind insane. I personally am A-OK with fools like her acting the fool for all to see. Blowback needs to be permitted.
Supreme Court Justices should know that there are lies, dam lies and then statistics. As lawyers they are experts in lies but statistics is way over their heads. Don’t even try LOL
Was her statement challenged and corrected in the course of the arguments ?
When false, misleading or ignorant statements are made by public figures, private figures in public ( to include all forms of media) the door is open to correct those statements , in public by the same media outlets .
In tone and substance well said. “The solution to disinformation is more information” cannot be repeated enough, for in the end, it is our salvation, not only for those who embrace it but for those who would traduce it.
I am shocked that JT did not mention the whopper that Gorsuch put out when he said the flu kills hundreds of thousands. I guess it is not worth it because Rs always lie.
I would not go so far as to call this a whopper. That depends on the timeframe. The flu kills tens of thousands in the USA every year. In the deaths of elderly flu and UTI are often the thing that advances the process of dying of natural causes. It is also responsible for millions of U.S. illnesses and many hospitalization.
I would be nice if political figures could simply issue a correction. They would be more credible since it is human nature to inflate a story.
https://www.cdc.gov/flu/about/burden/index.html
Sammy, that is a LIE…and you probably know it. Gorsuch said that the’ flu kills hundreds, thousands” a year, he did NOT say it kills hundreds of thousands a year. What a lame attempt at whataboutism while trying to comment on a story about Sotomeyer’s either basic lack of knowledge or her outright lying for “the cause”. Try again, you just struck out.
And perhaps Sotomayor said “a hundred-, thousand,” correcting herself. Or maybe she wasn’t talking about hospitalizations. The Post just assumed that, even though she didn’t say hospitalizations. Anyone who truly wanted to know would start by seeking clarification. But Turley prefers to feed conflict.
That’s not what he said. Listen closely to the audio. He said “hundreds [short stop] thousands,” which would be written as “hundreds, thousands.” But anything to make Sotomayor looks less … wrong.
…when he said the flu kills hundreds,
ofthousands.FIFY.
That’s why.
What a dishonest column. Twitter does not ban users for statements they’ve made in other venues, off Twitter. They only ban people for tweets they’ve sent on Twitter itself. The Justices do not hold oral arguments on Twitter.
And as you always do, you ignore that private companies themselves have 1st Amendment rights to decide what to host, and users choose to agree to the Terms of Service when they use services provided by companies like Twitter and Facebook and WordPress.
You are also a hypocrite who has Darren delete lots of comments that are legal speech. Of course, you have a right to do that. But don’t hypocritically call for companies to do what you yourself will not do.
They ban Conservatives who repost CDC guidelines. WHY?? Because it was a Conservative, or the CDC guideline was wrong?? You decide.
Or because you’re lying about what actually happened. Hard to know, given that you can’t be bothered to even name the person, much less provide evidence.
Anonymous
You win today’s prize for bitterest comment.
Continue wallowing in your own bile.
You confuse truth for bile.
Do you deny that these companies have 1st Amendment rights? Do you deny that JT has Darren delete comments that are legal speech (as is JT’s own right to do)?
Your ad hominem does nothing but demonstrate that you can’t argue the issue.
Anonymous: You have a lot of catching up to do. Start by taking a deeper look at your simplistic argument that companies have a first amendment right to censor. The argument against that is probably much too complex for your reductionist mode of thinking, but it has to do with how these companies function. I’ll leave it to you to parse out the details. As for Darren deleting comments, you provide no proof, and the very fact that your vitriol is allowed to stand doesn’t help your case.
It’s a fact, not a “simplistic argument,” that private companies have 1st Amendment rights, including the right to refuse to host others’ speech if that speech is contrary to their ToS.
And no, I will not “parse out the details” of your imaginary argument, when you are unwilling or unable to make it for yourself.
As for comments being removed, what evidence do you want? Do you want links to comments that have been removed? All you’ll see is that there’s no corresponding comment. Click on JT’s Civility Rule link, and you can see him admitting he deletes some.
As usual, Turley’s column was clear, accurate, and right.
Won’t make a bit of difference to the Lefties.
They know that censorship can be used to hurt their enemies so they support censorship.
Ugly people.
Monumentcolorado says,
“ As usual, Turley’s column was clear, accurate, and right.”
No it wasn’t. He wasn’t clear or accurate. He first states justice Sotomayor’s first name as “Elena” when in fact it’s “Sonia”.
Then he asks an obviously stupid question about the possibility of Twitter banning her for making an erroneous statement from the bench not Twitter itself. She didn’t violate their policy due to the fact that she didn’t use the platform.
Turley is either being really sloppy or deliberately disingenuous. He’s engaging in the practice he often criticizes. Giving fodder for his rage addicted readers.
Does it really matter what she said ? She has a job for life. Take a look at who appointed her to the Supreme Court and that explains her comment.