Supreme Court Justice Ketanji Brown Jackson questioned an interpretation of the First Amendment being presented to the court Monday that she says is “hamstringing the government” from censoring American’s free speech.
Oral arguments began on Monday for Murthy v. Missouri, formerly Missouri v Biden, a lawsuit that was filed against several executive agencies and personnel for alleged collusion with social media platforms. The complaint was first heard in the U.S. District Court for the Western District of Louisiana, where, on July 4th, 2023, Judge Terry Doughty ordered a preliminary injunction, preventing federal agencies from communicating in any manner with social media platforms for the purpose of “pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The lawsuit was brought forth by the attorney generals from the states of Missouri and Louisiana, who accused senior officials in the executive branch of the federal government of censoring information and voices “disfavored” by the political left. In their complaint, the attorney generals accused the federal government of procuring “the actual censorship and suppression of the freedom of speech” by identifying “disfavored speakers, viewpoints, and content.”
The case was taken to the Fifth Circuit Court of Appeals, which issued a modified injunction in October 2023. The federal appeals court acknowledged evidence that agencies and personnel had directly asked social media platforms to remove content and “keep an eye out for tweets that fall in this same [] genre.” Later that month, however, the Supreme Court stayed the modified injunction.
On Monday, while the Supreme Court heard oral arguments from both parties, Justice Jackson made several comments that many have seen as problematic.
Justice Jackson, while addressing Louisiana Solicitor General Benjamin Aguiñaga, said “[T]here may be circumstances in which the government could prohibit certain speech on the internet or otherwise.”
Aguiñaga argued that the federal government’s many interventions in social media content moderation infringed on the First Amendment rights of Americans; however, Justice Brown maintained that “not every situation in which the government engages in conduct that ultimately has some effect on free—on speech, necessary becomes a First Amendment violation.”
“In certain situations, the government can actually require that speech be suppressed if there’s a compelling interest,” she added.
Continuing her viewpoint, Justice Jackson told Louisiana Solicitor General Benjamin Aguiñaga, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.”
“It’s a very, very threatening thing when the federal government uses the power and authority of the government to block people from exercising their freedom of speech,” Louisiana Attorney General Liz Murrill said in response to Justice Jackson’s statements.
“The implications are enormous, there’s a to hanging in the balance here. If the Supreme Court sanctions what the federal government did—we have thousands of pages of emails and documents in the record that support the findings of the courts below that describe this as a sprawling enterprise, Orwellian in nature, to censure the American public,” the Louisiana Attorney General said while appearing on Fox News. “I think the consequences are very great if the Supreme Court says we have no remedy for that.”
