It did not feel like a very good day for the First Amendment when the Supreme Court heard oral arguments last week in what is likely the most important free speech case in U.S. history.
The case is Murthy v. Missouri, formerly known as Missouri v. Biden. Four federal judges already have determined that the federal government went beyond the boundary of permissible persuasion when it leaned on social media platforms to remove or throttle constitutionally protected free speech.
Particularly unsettling was a comment from the newest member of the court, Justice Ketanji Brown Jackson. “My biggest concern,” she said to the solicitor general of Louisiana, who was representing the censored plaintiffs, “is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.”
As many observers quickly pointed out, the only purpose of the First Amendment is to hamstring the government. It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
But Justice Jackson said this: “I mean, I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech but not necessarily a total prohibition when you’re talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of a once-in-a-lifetime pandemic.”
I’ll bet Justice Jackson will understand it differently by the time the decision is handed down, although I really shouldn’t make bets. I once bought dinner at a steakhouse for the entire editorial board of this newspaper after I lost a bet over who would win the 2020 presidential election. Still, there’s a reason she said what she said.
When Justice Jackson mentioned “First Amendment jurisprudence” and “heightened scrutiny” and “compelling interest of the government,” she was referring to the balancing tests devised by the court over the last 100 years to work around the fact that when the Bill of Rights was ratified in 1791, it did not apply to the states.
As late as 1900, in the case of Maxwell v. Dow, the justices said the first 10 amendments to the Constitution “were not intended to and did not have any effect upon the powers of the respective states,” adding, “This has been many times decided.”
Everything began to change in 1925. The Supreme Court was considering the case of an anarchist named Benjamin Gitlow and decided to “assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
The Fourteenth Amendment was ratified in 1868, and for 50 years, the Supreme Court had said consistently that it did not make the Bill of Rights apply to the states. But in 1925, after everybody who voted on the Fourteenth Amendment was out of the picture, a new era of constitutional interpretation began.
The Supreme Court never ordered the states to “make no law abridging the freedom of speech.” Instead, the court gradually developed balancing tests made up of different levels of “scrutiny” when a state infringed a right that the court had declared to be “fundamental.”
For example, in 2005, California enacted a ban on the sale of violent video games to minors. The Entertainment Merchants Association challenged the law as a violation of the First Amendment. When the case reached the U.S. Supreme Court in 2011, California had to satisfy “strict scrutiny” by demonstrating to the court that the law was “justified by a compelling government interest and narrowly drawn to serve that interest.” Five justices found the state’s evidence to be “not compelling” and they struck down the law. Justice Antonin Scalia wrote the majority opinion.
But this type of analysis applies to actions taken by the states, not by the federal government. The plain language of the First Amendment forbids the federal government from abridging freedom of speech. No balancing tests are needed to get there.
Something similar was part of the decision in the landmark Second Amendment case, New York Rifle & Pistol Association v. Bruen, in 2021. Justice Clarence Thomas wrote the opinion, which rejected “any means-end test such as strict or intermediate scrutiny.” The Second Amendment itself “is the very product of an interest balancing by the people,” Thomas wrote, and a “second step” of means-end scrutiny is “one step too many.”
The case of Murthy v. Missouri arrived at the Supreme Court after two lower courts granted injunctions ordering the government to stop the actions it was taking to cause censorship on social media platforms. The Biden administration appealed, asking the Supreme Court to grant a stay of the injunction. The justices did grant the stay, but they also granted something the Biden administration hadn’t requested — the court immediately accepted the case for review on the merits.
Three justices signed a furious dissent from the court’s decision to stay the injunction, effectively letting censorship continue. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” wrote Justice Samuel Alito, joined by Justice Thomas and Justice Neil Gorsuch. And also, “Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct?”
I’ll bet that there are at least five votes on the court to order a halt to the government’s censorship scheme, and that the justices will draw a bright line between allowable persuasion and impermissible coercion so this can never happen again. If I lose the bet, I’ll buy the plaintiffs dinner at a steakhouse.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley
