Following Monday’s Supreme Court oral argument in the social media censorship case Murthy v. Missouri, outraged free-speech advocates rightfully excoriated Justice Kentanji Brown Jackson for worrying that the First Amendment will “hamstring[] the government in significant ways in the most important time periods.”
Given that “hamstringing” the federal government was precisely the purpose of the Bill of Rights, Justice Jackson’s comment laid bare the fundamental disdain she and other politically liberal justices hold for the classically liberal freedoms our Constitution protects.
But even worse than Jackson’s “hamstring” comment was something she said a half-dozen sentences later.
“So can you help me? Because I’m really — I’m really worried about that because you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective,” Justice Jackson said to Louisiana Solicitor General Benjamin Aguiñaga. Why couldn’t the government communicate with social media companies then? Jackson queried.
Aguiñaga, on behalf of the respondents, the states of Louisiana and Missouri, and several individual plaintiffs who had been censored on social media, countered that the government could communicate with tech companies and share truthful information with them. But in doing so, the government must comply with the First Amendment, which means federal officials cannot ask Big Tech to censor third parties.
Lost in this exchange, however, was the horror of Justice Jackson’s premise — that the government outreaches would depend on federal officials’ “perspective” of “threatening circumstances.”
Five years ago, that proposition might not have seemed so shocking because Americans hadn’t
