SCOTUS Must Protect The 1st Amendment. The Biden Admin Certainly Won’t
Next week, the Supreme Court will confront a government censorship operation that has no analog in American history.
The justices are set to hear oral argument in Murthy v. Missouri, a First Amendment challenge to the Biden administration’s pandemic-era censorship enterprise. The New Civil Liberties Alliance, where I am litigation counsel, represents distinguished scientists whose speech was abridged on social media platforms as a result of federal government’s action.
Billed as an effort to protect Americans from “misinformation” about a public health emergency, the record in this case reflects that the White House’s censorship operation spread its tendrils across public discourse on a wide variety of pandemic-related topics, including personal accounts of vaccine side-effects and provably true statements. As discovery in the case revealed, government sought suppression of lawful speech on a broad range of other subjects as well, including elections, parody, and gas prices.
Upholding much of U.S. District Judge Terry Doughty’s preliminary injunction, the Fifth Circuit Court of Appeals characterized the administration’s actions in this case as “a coordinated campaign … orchestrated by federal officials that jeopardized a fundamental aspect of American life.” They were right to do so.
The Constitution forbids the government from abridging the freedom of speech — whether its efforts rise to the level of coercion or not — and it secures for every American the right to listen, read, form opinions, and participate in public life. Likewise, the Supreme Court has made clear that government cannot co-opt private companies to accomplish what it cannot directly.
As the nearly 20,000-page record in this case establishes, the Biden White House, along with a number of executive agencies, was and continues to be cavalier about these fundamental civil liberties. For example, in late 2021, executives at Twitter capitulated to unrelenting pressure from the White House to remove a parody video featuring First Lady Jill Biden. The video, which is clearly inauthentic, features a child profanely jeering at the first lady while she reads to students. Christian Tom, a senior White House communications aide, sent the video to Twitter for their review on Nov. 30, 2021. A staffer replied to Tom’s outreach six minutes later.
The platform applied a label to the video indicating it had been edited for comedic effect. This did not satisfy the White House, which was unrelenting in its mission to silence critics — even those whose critical message was conveyed through comedy. Tom, digital strategy director Rob Flaherty, and press secretary to the first lady Michael LaRosa badgered Twitter about the video for weeks, until the platform buckled and quietly removed it from the platform late in December.
The president’s senior aides were similarly — if not more — emphatic in their often-successful attempts to abridge pandemic-related speech. The White House, in close consultation with the surgeon general, even took steps to censor unquestionably truthful claims about COVID.
Emails reflect a White House fixation on “borderline content” as well as the pressure platform executives were under to stay in the administration’s good graces. As Judge Doughty explained, “borderline content” captures “often-true content involving personal experiences, such as true but shocking claims or personal anecdotes, or discussing the choice to vaccinate in terms of personal and civil liberties or concerns related to mistrust in institutions.”
In one particularly telling exchange, Flaherty — the digital director — demanded answers from Facebook after a Washington Post story accused the platform of enabling vaccine hesitancy.
Under the subject line “You are hiding the ball,” Flaherty demanded that the platform do more to censor what he called “borderline content.”
A separate set of emails featuring Flaherty and other senior aides supplies another definition of borderline content — “things that are dubious but not provably false.” To be clear, the Constitution protects false speech, with limited exceptions such as fraud and defamation. As the Court has recognized, what is deemed false one day might the next be recognized to be true, so the notion that the government can effectively serve as gatekeeper of the truth is fundamentally flawed. But it is even more shocking when government officials acknowledge they are seeking to silence information that is or might be true. That raises the specter of suppression for purposes of power and control, an alarming prospect in a free society.
This is the kind of heavy-handedness we should expect whenever the government disregards our civil liberties. Even Flaherty inadvertently acknowledged the blundering nature of the censorship operation in a March 2021 email to Facebook. “I will also be the first to acknowledge that borderline content offers no easy solutions,” he wrote.
Flaherty was wrong. The Constitution supplies an easy answer.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
March 18, 2024
Originally Published in Daily Caller