Below is my column on the three major free speech cases heard by the Supreme Court in the last month. The three cases (Murthy v. Missouri, National Rifle Association of America v. Vullo, and Gonzalez v. Trevino) could hold the balance for whether free speech will be protected in the coming years from increasing censorship and targeting by the government.
Here is the column:
This month, the Supreme Court reviewed a trifecta of free speech cases that has government and civil libertarians alike on edge. While each of the cases raises an insular issue, they collectively run across the waterfront of free speech controversies facing this country.
For some of us, what was most chilling from oral arguments were the sentiments voiced by justices on the left of the court, particularly Justice Ketanji Brown Jackson. The court may now be reflecting the shift among liberal scholars and politicians away from freedom of speech and in favor of greater government speech regulation.
In my forthcoming book, “The Indispensable Right: Free Speech in an Age of Rage,” I explore the evolution of free speech in the United States, including the failure of the Supreme Court to protect free speech during periods of political unrest. Although a new revolutionary view of free speech emerged at the founding of the republic, it was quickly lost due to the regressive views of the federal courts over centuries of conflicted decisions.
We are now living through one of the most anti-free speech periods in our history. On our campuses, law professors are leading a movement to limit free speech under the pretext of combating hate speech or disinformation. A dangerous triumvirate has formed as government, corporate and academic interests have aligned to push limitations of free expression.
That triumvirate is now before the Supreme Court, which is looking at cases where government officials targeted critics, dissenting websites and revenue sources.
What was disconcerting was to hear many of those same voices from our campuses echoed this week on the court itself.
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.”
The sweeping quality of Jackson’s remarks shows that the relativistic views of free speech may now have a new champion on the court.
In a second case, National Rifle Association of America v. Vullo, the court considered an effort by a New York regulator to discourage banks and insurers from working with the NRA. Maria Vullo, who ran New York’s Department of Financial Services, allegedly used her office to pressure these businesses to cut off financial support for the nation’s leading gun rights organization.
As with Murthy, the Vullo case captures one of the principal tactics used by the anti-free speech movement in attacking the advertisers and businesses of targeted individuals and groups. One such government grant resulted in a list of the 10 most dangerous sites for advertisers to avoid, a list that happened to consist of popular conservative and libertarian news sites.
The idea of a Democratic New York regulator targeting a conservative civil rights organization did not appear particularly troubling in oral argument for some of the justices. In fact, the views expressed by some of the justices were appallingly dismissive. Justice Elena Kagan asked, “if reputational risk is a real thing, and if gun companies or gun advocacy groups impose that kind of reputational risk, isn’t it a bank regulator’s job to point that out?”
In the third case, Gonzalez v. Trevino, the court was considering the arrest of Sylvia Gonzalez, a 72-year-old former councilwoman in Castle Hills, Texas. She earned the ire of the sheriff, mayor and other officials with her criticisms of their conduct. She was subsequently charged with inappropriately removing a government document (a citizen petition) that she had mistakenly put with other papers. The charges were later dropped. The case smacked of retaliation — there is no evidence that anyone else has faced such a charge in similar circumstances.
The case resonates with many who believe that the legal system is being politically weaponized in this country. Many of us are appalled by the Gonzales case. However, in this case, the support for the government seemed to come from the right of the court, including the author of a prior decision limiting such challenges, Chief Justice John Roberts.
The free speech trifecta, therefore, covers the three areas of greatest concern for the free speech community: censorship, blacklisting and weaponization. The resulting opinions could curtail or magnify such abuses. For example, the social media case (Murthy) seemed to trouble the justices as to where to draw a line on coercion. If the court simply declines to draw such a line and rules for the government, it will likely fuel new censorship efforts by federal agencies.
What is disconcerting about the views expressed by Justices Kagan, Jackson and Sonia Sotomayor in two of the cases is not that they are outliers. The problem is that liberal justices long acted as the bulwark for free speech on the court. They are now viewed as the weakest link, often dismissive or hostile to free speech arguments.
When Justice Jackson defends the right of the government to coerce speech, she follows a long legacy of speech relativists on the court, including the earlier Justice Robert Jackson. He had warned that the court needed to approach speech prosecutions with “a little practical wisdom,” so as not to “convert the constitutional Bill of Rights into a suicide pact.”
The current Justice Jackson seemed to channel the same practicalities over principle in stressing that “you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective.”
The view of speech as harm or violence is all the rage on college campuses, and also in many Western countries where free speech is in a free fall. France, Canada and the United Kingdom now regularly arrest people for expressing hateful or controversial viewpoints. Those same anti-free speech arguments are now being heard in our own Congress and colleges in the U.S.
It is not clear how the court will decide these cases. One fear is that it could retreat to blurry lines that leave us all uncertain about what speech is protected. In an area that demands bright lines to prevent the chilling effect on speech, such vague outcomes could be lethal.
The government loves ambiguity when it comes to speech regulation. It now may have found new voices on the left side of the court to join in the ignoble effort of combating free speech. That renewed effort to introduce “a little practical wisdom” could mean a lot less freedom for Americans.
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School, where he teaches a class on the Constitution and the Supreme Court.
I’m viewing all of what’s been happening for 6 years probably longer as some uncontrollable kid who got hold of a balloon. He’s fascinated and exhilarated by how large he’s been able blow air into the balloon until it bursts in face after which he’s in tears from the shock and sting of the explosion. Is the constitution, bill of rights and freedom in general being stuffed into a balloon by some uncontrollable kids and what’s going to happen when the balloon bursts, who’s going to be in shock and tears from the explosion?
Prisoners of Conscience used to be a thing with repressive dictatorships such as the USSR, China, today’s Iran. Now it seems to be all the rage with the Academic Left (from political correctness to microaggressions), and from there has infected the Democratic Party and the fawning mandarins running its Kafkaesque Deep State.
The views of the three liberal chicks on the court are to be expected. What continues to be disconcerting are the views of the other woman on the court, Justice Roberts. We all know by now that he can be expected to do the wrong thing. Gotta maintain that social standing among the DC elite.
A recent case, represented by Boyden Gray, is a good example that refutes Justice Ketanji’s argument re hamstringing the government. In the case of Ivermectin, the FDA was lying to the public and Big Tech was censoring credible, credentialed doctors who were trying to inform the public. It was the government doing the dis-informing. It was the government directing the censoring of speech. What happens when the government that is the biggest purveyor of intentional misinformation?
“WASHINGTON, D.C. – A settlement has been reached between the Food and Drug Administration (FDA) and the plaintiffs in a groundbreaking case filed in federal court to decide if the FDA violated its authority as a federal health agency in telling the public to stop taking ivermectin, a safe, well-studied, and proven drug for the prevention and treatment of COVID-19.”
https://covid19criticalcare.com/flccc-alliance-statement-on-the-settlement-reached-in-case-against-dhhs-for-telling-the-public-to-stop-it-regarding-taking-ivermectin-to-prevent-and-treat-covid-19/
One thing that’s apparent is that no one on the left is going to speak out against creeping encroachments like this. No one speaks out against lawfare. I can’t tell if it’s because authoritarianism is just too tempting for them or they fear ostracism. I do know, however, that their supposed fear of a Trump dictatorship is pretty frikkin’ rich.
Ah, the improvident Left. Unintended consequences. Someday the same tools will be used against them. The liberal justices may be handing Trump a big hammer without even realizing it.
Cionnath, if Biden wins, the Dems take Senate and the House, they will be able to pack the Court and add 2 states at which point our side will never be able to use these tools against them. It will be over.
and what is the punishment for the DEMOCRATS BREAKING Laws?
we need to START jailing the politicians and Judges against Free Speech!
We need to JAIL Democrats criminals from across government and big business!
What Judge Engoron is doing to Trump is theft by the government. Engoron should be in jail. Followed by Letitia James.
The whole legal notion of civil asset forfeiture needs to be re-examined.
Joe Biden is a criminal who betrayed America for money.
America’s enemies control the U.S. government.
They must be removed.
It is time to take America back.
Biden is literally an agent for the CCP and the Dems like Goldman and Raskin don’t care.
Neither does the media. They run a protection racket for Biden.
Where is any legacy media investigative reporting into Biden’s bribery schemes?
Where is Watergate investigative reporter Woodward’s book on Biden’s racketeering operation?
Woodward couldn’t shut up about Trump.
When going after Nixon or Trump greed and the agenda dovetail to make the Woodwards of the world actually do their job.
Post-internet informatics in a self-governing, free society is a complex problem. We cannot solve it with emotional polemics, where the debate is stuck in a dichotomization trap (you’re either for speech freedom or for govt. censorship).
The problem with “taking sides” this way is that BOTH govt. censorship AND unfettered freedom to dupe the public lead a free society toward authoritarian entrapment. If intentional public fraud is given the same protected legal status as the publishing the truth (an extreme interpretation of 1A), then propaganda will swamp the public infosphere. Does it matter whether its purveyors are currently in government, or the opposition seeking to replace them? A basic principle of self-government — the consent of the governed — is eviscerated if that consent is obtained through trickery and deceit. Therefore, 1A can never go so far as to legitimize the waging of deceptive infowarfare for political advantage.
But, however the public square is regulated toward honesty and candor, such regulation must never be put in the hands of government officials (or their proxies). That is the crux of 1A — not that the infospace be unregulated by anyone. That leaves The People, not via government officials, but acting independently of government to be the ones setting norms and standards of honesty in public venues and enforcing them.
We already have a decent model in Defamation Law. It doesn’t involve govt. prosecution, nor result in prison. It uses Civil Lawsuits and Courts to correct intentional disinformation injurious to reputation. The govt’s role in such cases is neutral — providing a Judge, a courtroom, and a Jury. The parties’ lawyers can subpoena evidence, piercing the veil of secrecy behind which the defamer prefers to operate so as to escape accountability. The Jury of 12 Americans acts as final finders-of-fact after processing all the relevant evidence.
The main area of improvement needed in defamation lawsuits is their lethargic pace. Fast due-diligence would pay off in that the falsehoods being pushed out by the defamer would be trounced by the Jury sooner. But, just the mere filing a defamation lawsuit brings public attention to the controversy, and this can have an immediate effect to weaken the defamatory claim.
What about public “whoppers” pushed out for political gain that don’t involve defamation? Is the public’s need for reliable (or at least sincerely formed) reportage any less important than a person’s reputation? We have to make history-shaping decisions — is it wrong to insist they be based on truthful depictions of reality? We went to war in Iraq based on artful fabrications coming from Ahmad Chalabi and the Iraqi Shiites….they duped the U.S. population and Bush leadership into overthrowing Saddam Hussein, and installing a pro-Iranian regime. Now we’re living with it.
Just before the 2020 election, Biden campaign operative Tony Blinken got with ex-CIA Mike Morrell, and they cooked up a PsyOps damage-control campaign to discredit Hunter Biden’s laptop. If the 51 signers had been under threat of being sued immediately for public fraud, don’t you think they would have had 2nd thoughts?
pbinCA said: “bla, blabbla, bla bla ba…”
“emotional polemics”, my a$$. Your verbose, blathering, justification does nothing to hide the fact that the inevitable direction of central government, in general. and the clear direction and intent of our current government, is to quash individual liberties for the many, to the exclusive benefit of a select few. If free speech is disfavored by the courts to the extent that now appears to be likely in current cases, it might become necessary to revisit the premise that the purpose of the 2nd is to protect the 1st, relatively soon.
Number 6,
Well said.
That revisiting is very concerning. But I feel without it, we would re-live 1930s Germany.
Oh yeah, you’ll be real successful with your “2A” solution when the cops and military break in the direction of law and order. They’re sworn to uphold the Constitution, and the ones I know are serious about that loyalty.
Authorities are elected with the consent of the people — not self-appointed zealots by brandishing guns.
PbinCA prefers leftist big mouths defunding police departments, releasing criminals and encouraging illegals. What protection have you offered to the citizen under your type of control who needs a weapon to protect himself?
“A basic principle of self-government — the consent of the governed — is eviscerated if that consent is obtained through trickery and deceit.” Which every politician uses each and every election.
So, what do you want to do about it? Just kvetch and accept it? What’s happened to American “can do”?
The Democrats are being led down a dangerous path by the academics, young (foolish) people, the media (also young and foolish) and opportunistic liberal politicians that see appeasing these groups as their ticket to DC, fame and fortune. If you think fortune is me being hyperbolic than I suggest you check out the net worth or Pelosi, Biden, Bernie and others as well as the sickening lifestyle of idiots, literal idiots, like Eric Swalwell.
Hey fence sitters, if Biden wins in November he will have more “great thinkers” for the Court. Do you like Sotomayor? Jackson? These are not great minds like William Brennan or even Thurgood Marshall, let alone the giants like Scalia, these are DEI lightweights, partisan hacks and thinkers right out of the campus. in other words, idiots.
HullBobby,
Read a few articles over the past few days, saying the Biden campaign and Democrats are in an panic.
Biden is losing support from the Black community, has lost the Hispanic community entirely, and shockingly young voters too.
Upstate, it all started with Afghanistan and the left telling everyone that what they were seeing isn’t happening. Now they are doing the same thing with the border and prices. Blacks, Hispanics and young people know things aren’t good and when the media and Biden says things are great they slip even more.
HullBobby,
That right there.
They keep trying to gaslight us about the economy, and when that does not work, it is someone else fault. Never theirs!
We know better.
DEI lightweights, partisan hacks and thinkers
Saw a new deffinition of DEI on the interwebs over the weekend
Didn’t Earn IT
If you need a summation of the judges Obama is putting up in Bidens name. There should be a video montage of Sen. Kennedy, exposing the nominees as clueless ignorant DEI hires.
The latest was a Nominee looking for a Judgeship, unable to explain a brief she presented to the court. It was a brief presented in favor of a ban of “assault” rifles. He asked for a definition of ” Assault” rifle. She was unable to make an attempt. BUT she said, it was not her work. . . she just signed the court document. Kennedy said her signature means she has validated the information she signed.
Needless to say, it did not go well, and Kennedy never let her of the hook.
This is just one of ~8 different nominees.
What I find most troubling from the Missouri v Biden case is the Constitution was designed and framed to protect American citizens from the Government. At least 3 or 5 of the justices seemed to believe the Constitution is to protect the Government from the American citizens!!
It up to Free Speech advocates, to get to work, using our free speech rights to state our case, protecting and empowering the first amendment from all challengers so the first amendment can protect us.
“Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” – Benjamin Franklin
The framers of the Constitution and the Bill of Rights did an amazing job, but it is impossible to completely restrain the tyrants among us with mere words. It is no coincidence that authoritarianism advances when a society pushes toward socialism, since government is the engine of socialism. Unless we as a people reject socialism, we are doomed to tyranny.
pudnhead said: “it is impossible to completely restrain the tyrants among us with mere words”
“…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”
Great piece, and unfortunately this is all being reflected across the entire Western world. I am increasingly unable to see the modern left’s totalitarianism ending well for anyone, anywhere. I do not want to see the planet once again descend into war, but that sure seems to be where we’re headed. At the least, the time for sleepwalking is over.
Protect the 1A and 2A at all cost. I and many others no longer vote for democrats, period, when formerly we did (myself as recently as 2012, this has come upon us generationally with unimaginable rapidity) and I hope more and more are awakening as to why.
This is truly a concerning moment in history.
It looks more and more like 1930s Germany.
My Jewish friends are very concerned.
History repeats; people don’t (usually). That’s the great lesson of mankind.
Upstate, I fear that anti-Semitism is the canary in the coal mine when it comes to loss of rights. The ironic and yet sad thing is that Jewish folks have been at the vanguard of such groups as the (once freedom loving) ACLU and of course the Jewish Anti-Defamation League. These days the ACLU actually fights to ban certain books and the ADL is too busy trying to appease the leftist masses to actually fight against this worrisome canary.
When they attack Jews in favor of medieval Middle Eastern groups (Hamas, Hezbollah and Iran), the end is near. Sadly we have a doddering old senile fool in the WH who is being run by leftists that want the west ruined. The oddest part for me is how the Schumers and other formerly normal Democrats can go along with this insanity.
Good post Hullbobby.
If your Jewish friends are concerned, then why have they been such staunch supporters of the antisemitic DemoRat party? I agree with you about the resemblance to the 1930’s Germany, we can’t forget the resemblance to the other tyrannical regimes like NK, Iran, Russia, China, WEF etc. It appears that they have bought the world lock, stock, and barrel.
Actually I am not sure which party they support. They consider themselves to be conservative Jews.
Was having a conversation with one the summer of 2021. He said he was afraid of this government and the Biden admin.
His fear has gotten worse since then.
…Because many live in the past, WW2, even though Roosevelt did little for the Jews during the Holocaust. The Democrats today are anti-Semitic, and the Republicans show considerable concern for freedom of speech.
Why, with Christians being murdered all over the Middle East, do they support the Democrat Party? Why do blacks who are demeaned by the Democratic Party support it? Why does the Chinese, whom the Democratic Party discriminates against, support it?
Many groups support the Democrats, but are they able to defend their arguments based on critical thinking skills? No.
When you’re wounded, you get mad. That’s the Left today. Let’s hope the wound’s fatal.
mespo727272 said: “Let’s hope the wound’s fatal”
I second that hope. Unfortunately, a vicious animal, when mortally wounded, will frequently lash out blindly, destroying anything within reach. I fear that may be closer to what happens next.
There was a time I had voted for democrats because of their defense of such civil liberties. Now I have to vote against them as hostile to same.
The Left is going totalitarian at an increasingly rapid pace.