They say bad facts make bad law. But bad hypotheticals make even worse law, especially when they come from a clueless set of judges considering the most important free speech case in years.
That thought repeatedly crossed my mind as I listened to the U.S. Supreme Court make a mockery of free speech in Monday’s arguments in the Murthy v. Missouri censorship case.
Make no mistake: The actions that led the attorneys general of Missouri and Louisiana to sue the Biden administration were not normal. They were unprecedented, both in the extremes to which government officials went in their effort to pressure tech companies into censoring viewpoints they did not like and in the way the companies submitted to the government’s pressure. To use White House official Rob Flaherty’s word, they became “partners” in an Orwellian scheme to remove speech the government deemed false, misleading, or, in a perfect reflection of our elites’ beloved new nanny state, “harmful” to society.
The institutionalists on the Supreme Court appeared not to care. They seemed more concerned about chilling the government’s ability to criticize media outlets that print stories they don’t like — something that, without attribution, Justice Elena Kagan said happens “thousands of times a day in the federal government” and which Kagan said she does herself. The institutionalists appeared more worried about a hypothetical of restricting law enforcement from informing a tech company (they always use the benign term inform) that people were using its platform to promote a teen
