This Summer First Amendment Will Either Die or be Renewed

The U.S. Supreme Court heard oral arguments Monday on what George Washington University Law Professor Jonathan Turley said "could prove one of the most important free speech cases in the history of the Court."

The issue in Murthy v. Missouri is whether government officials can coerce social media platforms to restrict the free speech of its users in order to counter what the government believes is misinformation.

The short answer should be a resounding "No!"

That’s what the First Amendment is all about.

But if statements coming from some nominally conservative justices are a clue, free speech may be in trouble.

The case stemmed from the Biden administration bullying social media companies to restrict users’ posts containing what it deemed misinformation about the COVID-19 vaccine.

In one instance, then-White House director of digital strategy Rob Flaherty told Facebook in an email "I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse."

This was publicly reinforced by other administration officials, including then-White House press secretary Jen Psaki, who claimed that social media platforms could face "legal consequences" if they didn’t censor vaccine "misinformation."

The initial lawsuit was brought by two states — Louisiana and Missouri — and several individuals whose social media posts were censored because of the government’s actions.

The U.S. District Court in New Orleans ruled that the Biden administration overstepped its bounds by "coercing" or "significantly encouraging" the censorship of social media content. The Fifth Circuit Court of Appeals agreed.

The Wall Street Journal observed Sunday that “A bedrock constitutional principle holds that government can’t coerce private parties to do what government cannot do on its own. The High Court on Monday can reaffirm this emphatically.”

Professor Turley suggested that the two jurists who appeared to be the most skeptical of the government’s argument were Justices Sam Alito and Neil Gorsuch.

At one point administration lawyer Brian Fletcher argued that they were merely "pestering" social media platforms, rather than "coercing" them.

Alito them delivered what Turley called a "haymaker," telling Fletcher, "I cannot imagine federal officials taking that approach to the print media. If you did that to them, what do you think the reaction would be . . . Would you do that the New York Times . . . ?"

Gorsuch suggested that coercion can be enhanced in this case because social media is a concentrated industry, unlike the print media.

However, Chief Justice John Roberts, along with Justices Brett Kavanaugh and Amy Coney Barrett, appeared to be willing to make excuses for the government, according to an analysis drafted by SCOTUS Blog editor Amy Howe.

Roberts suggested that because the federal government isn’t "monolithic," if social media platforms feel pressure from one part of the government, they could seek redress from another, "and that has to dilute the concept of coercion significantly."

Kavanaugh, who served in the George W. Bush White House, claimed that coercion was nothing new, and that they “regularly call up the media and berate them.”

Barrett wondered if FBI officials "really encourage" social media platforms to take down posts.

Howe concluded in her analysis that the court was "skeptical of restricting government communications with social media companies."

Justice Ketanji Brown Jackson was concerned that freedom of speech might impede the government.

"My problem is your view has the First Amendment hamstringing the government in the most important times," she reportedly said.

But that’s the purpose of the Bill of Rights — to hamstring the government in favor of individual rights.

At another point Jackson suggested that some coercion might be allowed in "a once in a lifetime pandemic."

As Turley observed, "That question is chilling for free speech advocates."

It is, because with the government acting as the sole arbiter, there’s always going to be a "once in a lifetime" emergency, whether it’s a "climate crisis," an "insurrection" or another pandemic.

If the government says it’s so, it’s so.

And the government ultimately becomes the final arbiter of the truth.

This month we hit year-4 of: "15 days to flatten the curve" of COVID, and in addition to that lie, government health officials got it wrong on nearly every statement they made about the disease, while many of those social media posts that were silenced got it right.

And that’s the purpose of the First Amendment freedom of speech — to give everyone a chance to make their case and let the people decide for themselves.

As The Babylon Bee, a satirical website put it, "Ketanji Brown Jackson Warns Right To Free Speech Could Lead To People Speaking Freely."

The high court will announce its decision by summer. Depending on its opinion, Freedom’s bell will either ring loudly, or America will enter one of its darkest periods.

Michael Dorstewitz is a retired lawyer and has been a frequent contributor to Newsmax. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.