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.
Sigh, Turley sure loves fomenting his more idiotic readers. No Twitter won’t ban Justice Sotomayor. For the simplest of facts that Turley being the esteemed scholar that he is should know. She didn’t post her comments on Twitter. She can’t violate their TOS if she didn’t make the comments on their platform. However those that do post her comments ON Twitter do face the possibility of being censored….BECAUSE they USED….Twitter.
Gotta check out sources….it’s clear bryer mis spoke @750..it’s a shame some in media are continuing on it…he spoke right later in the hearing. Girsuchmmmmot his mispoke corrected..so soda misspoke….I am confident the Roberts who doesn’t want politicized…Will correct her gross error….right? Because the court isn’t political. Ok. And I have a cow in the last stall.
Nothing says “affirmative action” above quality and depth of character like judge sotomayor in her own blissful ignorance. She makes the case against affirmative action like no other !.
Quote from the article: “My point is not that Sotomayor should be banned from social media, but that this controversy shows why censorship is both unnecessary and biased.”
That’s basically saying “I’ll fight for your freedom to deny me mine!” said nobody ever who didn’t wind up in a concentration camp for political IN-correctness.
This is precisely why the left is going to win on the censorship issue, and offers insight into why the right is so weak and ineffectual at combating them because of their own arrogance of holding that the ideal of freedom should be enjoyed by all instead of just those who show a willingness to deserve it.
When the right doesn’t cancel the left when they break their own rules, and lets them laugh at how stupid the conservatives are for not making them pay a price for doing so, it reinforces the notion of how progressives have rigged the system to turn the right’s own ideals of universal freedom against them.
We need to start realizing that it’s not immoral to cancel people who claim it as a virtue to cancel others. It’s only wrong to cancel people who fight for other’s freedom of expression. Only when we start holding the left to their own standards and the consequences they demand should come after, will we start to get them defending the right to freedom of speech again as they start getting fined and ending up behind bars.
Example, these anti-bias teams on campus should be inundated with reports anytime a student openly supports the idea of gun control. Make a claim that you find it offensive and thereby force the left wing component that sits on the committee to dismiss it outright. The point is that by showing their bias so openly they unwittingly also open the door to lawsuits against these student governments that initiate these tribunals because of the inherent bias that’s built into them. When you can show that pro-gun reports are fully investigated but anti-gun incidents are not, you have a lawyerly case for why the courts should render financial compensation to those unduly affected.
Please fix this typo “Elena Sotomayor”.
GOODNESS ME! THE “LEARNED” INCLUDING JONATHAN TURLEY ARE PROVING TO BE MOST “UNLEARNED”! LA JUEZA’S NAME IS SONIA MARÍA SOTOMAYOR BÁEZ! GUESS JONATHAN WROTE THIS ARTICLE WHILE LOGGED ON LINKEDIN’S SALES VP PROFILE PAGE! EVIDENTLY SAD HE’LL NEVER BE ABLE TO LEARN THE DIFFERENCE BETWEEN MOFONGO AND MONDONGO EITHER!
Trivial!—You obviously are missing the point here, Pancho.
‘Where did Sotomayor get her false information on Covid (that she apparently believed)?
Isn’t it in the national interest to know who’s feeding her disinformation and why?
If reporters can’t get the info, is the FBI at least looking into this?
The answer should be easy to get.’
@sharylattkisson
You’ve become such partisan a tool, Turley, it’s pathetic. How did you forget to mention that the SCOTUS issued a REVISED transcript of Gorsuch saying, initially, that there were “hundreds of thousands” of people who die from the flu every year? The official SCOTUS transcript was revised to eliminate the word “of”, and replace it with a comma, so that the revised comment reads “hundred, thousands” of people who die. Actually, about 12,000 people die from the flu each year. Gorsuch was, of course, wrong, so why does Turley only find fault wih Justice Sotomayor or Democrats if they mis-speak?
Next, Turley tries to parlay what he knows to be an unintentional misstatement of Justice Sotomayor into some false equivalency argument about the fat slob being banned from Twitter. Turley, you know damn good and well that the fat slob was banned from Twitter for using it as a platform to spread lies that resulted in a violent attempt to overturn an election that he lost. There can be no good faith comparison whatsoever. But, hey, never let an opportunity pass by to criticize a Democrat or defend Trump.
What fat slob are you talking about, AL Gore?
Who gave Sotomayor her wildly inaccurate data? Who provided it to her? Was she watching MSNBC?
Democrats don’t “mis-speak” — they intentionally spread disinformation. They lie like Oriental rugs.
@Ralph Chappell re: “The real issue for Sotomayor and the Chief Justice is how to rectify both her use of such false information and to see that she is properly informed of the real and accurate information and most importantly that the accurate information is what guides her thinking on the Case.”
Be careful. It sounds like you are advocating for some “official” source of information which justices would (somehow) be required to use for the basis of their judgements. Frankly, that idea is far more dangerous than Sotomayers’ abysmal ignorance. There is no practical way to enforce such a requirement, fortunately. Justices, like the rest of us, get to exercise individual discretion over what they consider to be reliable sources of information. Some make good choices, some (like SS) make terrible ones. If there was an appropriate time to examine the process and the criteria she employs to vet facts, it was during her confirmation process. Turley alludes to the real issue here, although imo he should have given even greater emphasis. What Sotomayer thinks about the number of children hospitalized with COVID should be as irrelevant to her decision on the mandates as her opinion on the cocker spaniel population of Boise, Idaho. The issue is that justices are supposed to be ruling on matters of LAW; the real world justifications or implications for ruling in a certain manner are not to be given more than the most superficial weight (if any at all). That is why “activist judges” are an abomination – they undermine the separation of powers, and arrogate to the court the role of the legislature, which is the body that should be concerned with the EFFECT of the law.
The sole charge of the Supreme Court is to assure that actions comport with law; it has no power to legislate, modify legislation, or modify legislation through “interpretation.”
The first consideration in this case is that no power to mandate is provided by the Constitution to any level of government.
The Supreme Court should have immediately struck down any act to “mandate” anything.
The nearest power is that provided to Congress to suspend habeas corpus in a condition of rebellion or invasion, neither of which exists.
There are no actual and legitimate “emergency powers,” or any power to issue mandates in an emergency; there are no “implied powers” or “necessary and proper” laws that bear.
Case law is unconstitutional legislation by court and “legislation from the bench.”
The judicial branch is not elected and must be brought under control through a streamlined and accelerated impeachment process.
Grima,
My intent was to suggest that the Justice be apprised of her error of her statement and be shown why she was wrong. Then, the Chief Justice should make sure the Justice understands her decision on the case should be based upon the Laws that pertain and the Constitution and not on Statistics.
My point is Sotomayor appears to be thinking like a legislator and not a Justice.
Her duty and fidelity must be to the Law….and ensure that actions of the Executive Branch comport with the Constitution and the very text of the Laws passed by Congress and signed by the President.
Impeach and convict for the crime of high office as willfully attempting to defraud through the production of false evidence.
The “mistake,” in this case, was confirming an unqualified candidate in order to fill an unconstitutional affirmative action quota.
Turley says:
“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’s the rub. Innocent mistakes are one thing, and lying is another. The former should not be removed; the latter should be. Unfortunately, Turley presumes that everyone is acting in good faith despite the obvious fact that many false statements are made in bad faith. Anyone who intentionally lies or indifferently makes a false statement can be sued for defamation. For example, Turley’s Fox News is being sued for broadcasting false statements in bad faith about 2 election companies. It remains to be seen whether Fox News will be found guilty. Be that as it may, Fox News is no longer allowing Trumpists to appear on its programs to lie that the election was stolen. When was the last time lawyers Giuliani, Powell, Ellis or Eastman were interviewed on Fox? The network has banned them. It’s ironic that Turley criticizes Twitter for acting as responsibly as Fox in refusing to be complicit in spreading lies.
I love it when the thin veneer of civility wears through, and the leftists visibly foam. Makes it easier to spot the folks who can simply be ignored, rather than engaged.
Stoppitt,
I agree there is too much listening and too little ignoring of uncivil comments.
“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 is EXACTLY what she was doing – intentionally misleading and using emotions to get people more fearful so that this authoritarian mandate would be viewed favorably by those gullible and ignorant of facts to believe her.
And, EXACTLY what Gorsuch was trying to do–downplaying the risk of COVID by misrepresenting the statistics on influenza. This is an old Fox News/ReTrumplican ploy: argue that COVID is no worse than the seasonal flu, and then cite the numbers of deaths from the flu. COVID has always been at least twice as deadly. And, people like you are the gullible and ignorant ones who don’t even understand how you are being manipulaed into believing that taking a vaccine is riskier than getting COVID.
No, he wasn’t. He said ‘hundreds, thousands’ ?? The man is not a Dem operative activisit doing the bidding of the Dems who put her on the court like Sotomayor clearly is.
And yes, in many instances, taking THESE vaccines IS riskier than getting Covid. These vaccines do not work as vaccines, they are mildly effective as therapeutics, not effective as vaccines, and they are NOT safe for everyone, nor are they necessary.
Have you signed up to get your 4th booster yet? President of Moderna said they are on their way! You’ll want to “keep up to date” with your regular boosters thereafter.
He SAID “hundreds of thousands”. The SCOTUS then REVISED the official transcript to correct this to “hundreds, thousands”. He SAID it and it was incorrect. That’s one point. The second is that Turley only finds fault with Democrats or non-Trump appointee judges when they mis-speak. He has yet to address the scope and extent of Trump’s endless lying about everything. The third point is the Fox News talking point that COVID is no bigger a deal than seasonal flu, a lie told frequently by Trump. Gorsuch played into this lie by his comment.
Prove it.
By the way, has ANYONE in media addressed the scope and extent of Joe Biden’s intentionally divisive endless lies about everything yet? Or his press secretary’s lies?
Fox News does not say Covid is no bigger deal than seasonal flu.
Speaking of gullible and ignorant….
Have you seen the ‘new and revised’ official covid ‘narrative’ yet?
800,000 people did not die FROM Covid, silly. They died WITH Covid.*
Trump was personally responsible for EVERY death (murder!) on his watch! But old Joe? Virus gonna virus, ya know. What else can Brandon do? It’s NOT his responsiblity to “shutdown the virus.” It WAS Trump’s, of course, but not Joey’s.
*Data revision coming soon. (what with the 2022 elections and all).
I was informed by a lawyer prepping for a deposition, avoid citing numbers. Numbers are unambiguous, and too easy to to impeach. I have taken that lesson throughout my life. Unless you are in an area you are absolutely positive, avoid. Often, like the good justice here, the error sucks up all the oxygen from the debate, nullifying anything else of substance.
People that spent the life in the law, should know this intuitively. But its obvious, the Justices have no need to protect their reputations. They are immune from judgement.
Iowan2 says:
“But its obvious, the Justices have no need to protect their reputations. They are immune from judgement.”
Nonsense. They are immune from being REMOVED from the Bench. They care plenty about the judgment of history of their reputations as jurists! They justify their legal judgment in their voluminous opinions in hopes that they can convince history that they were wise and just. No one’s reputation is immune to history’s harsh judgment.
Sotomayor offered patently false information….why is not the real issue but the fact that it was patently false is important.
The real issue for Sotomayor and the Chief Justice is how to rectify both her use of such false information and to see that she is properly informed of the real and accurate information and most importantly that the accurate information is what guides her thinking on the Case.
Same goes for the rest of the Justices….they are supposed to be looking at the Text of the Laws that apply…..and the Constitution for deciding Cases…..not statistics.
As to Twitter….Facebook….etc…..if I post this Link…..which with any level of reasonable analysis….using the State Covid Data…..would I be banned, mocked, or ridiculed when I say my analysis of the presented data tells me Covid is reaching the point where any outcry about a healthcare crisis is over.
The Severity Trend is down, there is no threat of overwhelming the healthcare system, there are ample ventilators available, there is spare ICU capacity and also regular care Rooms available.
This in in the face of new cases of Omicron, the Hospitals conducting regular procedures, AND at the same time firing Staff who refuse the vaccines.
Some places in the country have resorted to making infected Covid Healthcare Workers come to work and treat patients.
Folks…..this is not a crisis….the government mandates are a violation of Federal Law….this is now purely political and not based upon the science.
I can say this in comfort as I know Professor Turley understands the value of free speech.
Challenge the North Carolina Stats if you can…..but the good Democrats putting this data out have already tried and failed or I would not be seeing what I am in the Data.
https://covid19.ncdhhs.gov/dashboard/hospitalizations
Exactly. Patently false and disprovable in mere minutes by laypeople. This is what court packing by the Dems would look like.
The only question I may have is why would ANY Judge be a Traffic or Supreme worry what the price of tea is in China, or how many Jelly Beans are in the jar? They sit to interpret the law, not how many citizens have or may become infected with the virus, such as in this particular case.
Is Justice Sotomayor nothing more than Servile in her diatribe (carping)?
I have concern that those tasked with the final say in their interpretation of the Constitution and the Law have become shawled with partisan blinders.
T.S. Eliot ‘Little Gidding’ “Since our concern was speech, and speech impelled us to purify the dialect of the tribe and urge the mind to aftersight and foresight.”
Does Sotomayor have a license to practice medicine or a have a PHD in advanced Biomedical Technologies? If she does, Sotomayor could make a lot more money rather than being a Supreme Court Judge.
TJ, Truth is few if any of Prof Turley’s readers or commenter’s are in a position to know to what extent the “wise latina” may have other, non reportable sources of income – due to residency in one or more US Territories with favorable tax provisions or simple, sophisticated tax planning. As such, may be she makes more than engineers, scientists, other in bio-medical tech, cell-tech, virology, epidemiology, etc. … She may even be able to pocket more than if she had been a former commissioner or board member of the FDA, NIH, CDC, other … or a bureaucrat thereof. You have no idea just how big a Ho she might be. So I think in your comment you are jumping to conclusions.
I was really surprised of the justices lack of accurate information on the Covid subject. You can DuckDuckGo and find out most anything about numbers of sick. Really disappointed. I guess that shows they are just human with black dresses on.
No this is just indicative of Sotomayor’s flawed judgment, and not competent to be on the SC Roster.
Sotomayor should heed Lincoln’s advice. Better to keep quiet and be thought a fool rather than speak up and confirm all doubt.
It appears now that what is considered “disinformation” yesterday by the censors becomes truth in about 6 months. So in the advent of the censors opinions, they falsely claim that what is actually fact as fiction until they are proven wrong. Then they ignore what they have done to silence the truth. The Mask and Vaccine efficiency are prime examples!
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. — JTurley
I wonder how Turley divined the wise latina’s intent in making such a clearly egregious claim during arguments before the USSC on “vaccine” mandates’ Constitutional merits? Couldn’t it also be the mandates haven’t a Constitutional leg to stand on and, thus, she resorted to a save the children emotional pitch? Turley simply states his own belief, that Sotomayor was not “intentionally misleading or duplicitous”, rather than any proof this is so.
For myself, however, her comment evokes the Democratic Party and corporate media’s Russian collusion, mostly peaceful protests, let’s go Brandon, and January 6 insurrection narratives which are all intentionally misleading. Perhaps she was attempting to provide yet another narrative in service of her, and her liberal USSC colleagues, arguments “against substantial judicial review of the mandate orders in favor of extreme deference for the agencies.”
Which would prove her right about the “stench of politics” following this court…
“Will Justice Sotomayor Be Banned On Twitter? Don’t Bet On It.”
And water is wet, right?
JT, you should know by now that only “nazis”, “white supremacists” and “conspiracy theorists” face banning on twitter. Not a goddess of the left, BLM or the “Brave, Masked, Wonderful, Warriors of Antifa ™.
antonio
antonio
Twitter will die a slow death now that all but the CNN twisted crowd of Marxists, Socialists, Pedophiles, Rapists, and well… that is about all that will remain on Twitter in a few short weeks…
May twitter rot in the cesspool of deceit that it has fostered for so many years….