When can the federal government use its coercive regulatory powers to silence ideas it doesn’t like on social media? That was the question presented to the Supreme Court on Monday, and while a majority seems ready to protect the First Amendment, too many justices seemed ready to give the government the benefit of the doubt.
The key exchange came between Justice Samuel Alito and Deputy Solicitor General Brian Fletcher when Alito asked Fletcher if print media outlets such as the New York Times or Associated Press would ever be subject to the threats, harassment, and “constant pestering” that the Biden administration applied to social media companies Twitter, Facebook, and Google.
Fletcher responded yes, “potentially in the context of an effort to get Americans during a once in a lifetime pandemic.” In other words, the Biden administration position is that the government may bully any media outlet into censoring ideas it doesn’t like as long as it regards doing so as an emergency necessity.
That is not how the First Amendment is supposed to work. The federal government does not have a First Amendment right to anything. The same is true with state and local governments. The First Amendment is a protection for people, not governments. If the Biden administration wants to cajole people to get vaccinated, it is free to do so from the bully pulpit. What it is not allowed to do is use government power or threats to censor people who disagree with its COVID policies.
That is what the Biden administration did, not just on vaccines but on other subjects, such as posts about the virus originating in China or questioning Biden policies on racial justice, Afghanistan, or Ukraine.
The government’s record on COVID health policies deserves much skepticism. Four years ago this spring, school districts shut down for what was said would be “15 days to stop the spread.” This turned into months as the Centers for Disease Control and Prevention issued a directive calling for 6-foot distancing between people indoors. This was later found to have no scientific basis. Nor did the CDC’s guidance for how long people should be quarantined after being exposed to or testing positive for COVID.
The vaccines have turned out to be less effective than the government told us, and fears that they could cause real harm have turned out well founded. This is a classic case of why the First Amendment is so important. The federal government was often wrong about how best to prevent COVID’s spread and about damage from catching the disease. Thankfully, we live in a country that has a Constitution that protects such questioning of government policy.
Not all nine justices seem to support the First Amendment. Justice Ketanji Brown Jackson, like Fletcher, kept coming back to the fact that censorship could be justified during “a once in a lifetime pandemic.” That is a chilling suggestion.
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This is not a case in which someone was sharing United States troop positions during combat or threatening imminent violence. The government clearly is permitted to step in and stop such impending harm. But convincing people of the proper policy during a pandemic is different, especially when the science of the virus was so unsettled.
The Supreme Court may not accept the lower court’s injunction on Biden administration collusion with social media platforms as-is, but it does appear a majority of the justices still understand why we need the First Amendment, especially during a once-in-a-lifetime emergency.
