“The Supreme Court handed down a stern rebuke to some of the most right-wing judges in the country.., holding that no, judges do not get to micromanage how the Biden administration speaks to social media companies.
The vote in Murthy v. Missouri was 6-3, with Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett joining the Court’s three Democratic appointees in the majority. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.
As Barrett’s majority opinion lays out, this lawsuit never should have been filed in the first place, and no federal court should have entertained it. Her opinion holds that the Murthy plaintiffs, who raised vague allegations that the government tried to censor them, could not even show that the government did anything to harm them in the first place.
Murthy involves a wide range of communications among the White House, various federal agencies, and major social media platforms like Facebook and X (the website formerly known as Twitter). Some of these communications urged platforms to remove content, such as speech seeking to recruit terrorists, to spread election disinformation, or to promote false and potentially harmful medical advice — including false claims about Covid-19 and vaccines.
The plaintiffs in Murthy are two red states plus an array of individuals who had content removed or suppressed by at least one of the social media platforms. They claimed that platforms censored them because of pressure from the government, and that this pressure violates the First Amendment.
That is a highly dubious claim. While the First Amendment forbids the government from coercing media outlets into removing content, nothing prevents the government from asking a platform to do so. Indeed, at oral arguments in Murthy, both Justices Elena Kagan and Kavanaugh recounted times when, during their service as White House officials, they pressured journalists to remove or correct editorials or other content that contained factual errors.
Nevertheless, the far-right US Court of Appeals for the Fifth Circuit did not simply embrace this claim, it issued a vague and sweeping injunction forbidding the Biden administration from having “consistent and consequential” communications with social media companies — whatever that means. As a practical matter, this difficult-to-parse injunction made it virtually impossible for the administration to have any communications whatsoever with the platforms.
But the Supreme Court held that the Fifth Circuit was wrong to even consider these plaintiffs’ dubious First Amendment arguments, ruling that federal courts lack jurisdiction over this case.”
“So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court — with three justices joining both decisions — holds that the First Amendment still imposes some limits on the government’s ability to control what content appears online.
Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.”
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“That’s such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagan’s opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that “support Nazi ideology” or that “encourage teenage suicide and self-injury.”
In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.
As Kagan writes, the First Amendment does not permit the government to force platforms “to carry and promote user speech that they would rather discard or downplay.” She also cites several previous Supreme Court decisions that support this proposition, including its “seminal” decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over “the choice of material to go into” it.
Nothing in Kagan’s opinion breaks new legal ground — it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Court’s reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.
It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.”
“Texas and Florida’s Republican legislatures both passed similar, but not identical, laws that would effectively seize control of content moderation at the “big three” social media platforms: Facebook, YouTube, and Twitter (the platform that Elon Musk insists on calling “X”).
These laws’ advocates are quite proud of the fact that they were enacted to prevent moderation of conservative speech online, even if the big three platforms deem some of that content (such as insurrectionist or anti-vax content) offensive or harmful. Florida Gov. Ron DeSantis (R) said his state’s law exists to fight supposedly “biased silencing” of “our freedom of speech as conservatives … by the ‘big tech’ oligarchs in Silicon Valley.” Texas Gov. Greg Abbott (R) said his state’s law targets a “dangerous movement by social media companies to silence conservative viewpoints and ideas.”
At least five justices — Chief Justice John Roberts, plus Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — all seemed to agree that the First Amendment does not permit this kind of government takeover of social media moderation. There is a long line of Supreme Court cases, stretching back at least as far as Miami Herald v. Tornillo (1974), holding that the government may not force newspapers and the like to publish content they do not wish to publish. And these five justices appeared to believe that cases like Tornillo should also apply to social media companies.”
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“the Supreme Court appears likely to reinstate the Texas and Florida laws. This is not because the Court thinks they are constitutional, and not because the Court thinks that they are constitutional with respect to the three companies that Texas and Florida actually wanted to regulate. But the ham-handedly drafted laws at issue in the NetChoice cases sweep so broadly that they may have some ancillary effects that are permitted by the First Amendment.
That’s probably the right outcome under existing law, but good Lord, it’s an unsatisfying one. This litigation has been ongoing for a very long time, and the Texas law already reached the Supreme Court once in 2022, when a majority of the Court voted to temporarily block it. A decision reinstating the laws because they are not vulnerable to a facial challenge would start that process all over again. And it would create at least some risk that, should the personnel of the Court change while this case is being relitigated, that these clearly unconstitutional laws could actually be upheld.”
“freedom of expression is crucial and central to the American project. It’s also not a force field by which people are shielded from other rules. If I want to get people’s attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I’m simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.”
“Publicly, President Joe Biden accused the platforms of “killing people” by failing to suppress speech that discouraged vaccination against COVID-19. Murthy likewise said that failure was “costing people their lives.” White House Press Secretary Jen Psaki declared that social media companies “have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” If they failed to meet that responsibility, Murthy said, “legal and regulatory measures” might be necessary. Psaki floated the possibility of new privacy regulations and threatened social media companies with “a robust anti-trust program.” White House Communications Director Kate Bedingfield said the platforms “should be held accountable,” which she suggested could include reducing their legal protection against civil claims based on users’ posts.
Privately, administration officials pressed Facebook et al. to delete or downgrade specific posts and banish specific speakers, to take action against content even when it did not violate the platforms’ rules, and to expand those rules so that any speech federal officials viewed as dangerous to public health could be deemed a violation. Their “requests” were sometimes phrased as demands.”
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“Flaherty emphasized that he was acting on the president’s behalf, that his concerns were “shared at the highest (and I mean highest) levels of the [White House].” White House officials invoked previous perceived failures at content moderation, which they said had been disastrous. “When Facebook did not take a prominent pundit’s ‘popular post[]’ down,” the 5th Circuit notes, senior White House COVID-19 adviser Andrew Slavitt “asked ‘what good is’ the reporting system, and signed off with ‘last time we did this dance, it ended in an insurrection.'” In another exchange, Flaherty “demand[ed] ‘assurances’ that [Facebook] was taking action” and “likened the platform’s alleged inaction to the 2020 election, which it ‘helped increase skepticism in,'” adding that “an insurrection…was plotted, in large part, on your platform.'”
When social media companies failed to do what the administration wanted, White House officials reacted angrily. Flaherty noted that a flagged Facebook post was “still up,” asking, “How does something like that happen?” Facebook was “hiding the ball,” Flaherty complained. “Are you guys fucking serious?” he said in another email to Facebook. “I want an answer on what happened here and I want it today.” Because Facebook was “not trying to solve the problem,” Slavitt said, the White House was “considering our options on what to do about it.””
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“By and large, especially after Biden and Murthy accused social media companies of killing people, the platforms did what the White House wanted. They were eager to appease the president, repeatedly asking how they could work together to address his concerns. In this context, the 5th Circuit says, it is likely that the pressure campaign amounted to “coercion” and that the White House unconstitutionally shaped moderation decisions.”
“The establishment clause provides simply that there can be no law “respecting an establishment of religion.” It does not explain what an “establishment of religion” is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.
Armed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism — something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.
Everson was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”
Everson read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, “individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.””
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“Fifteen years later, in Engel v. Vitale (1962), Black laid out a different theory of why the establishment clause exists.
In Engel, the Court struck down a school district’s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. “One of the greatest dangers to the freedom of the individual to worship in his own way,” Black warned, “lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”
The central idea animating Engel was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government’s blessing.
The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
According to Engel, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”
Thus, while Everson read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.
Of course, these two theories of the establishment clause are not mutually exclusive”
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” before the Roberts Court started dismantling the establishment clause’s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person’s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.
All of that went by the wayside, however, in Kennedy v. Bremerton School District (2022).”
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“Bremerton is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case’s facts. It involved a high school football coach who would pray at the 50-yard line following games — in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor’s dissent.
Yet Justice Neil Gorsuch, who wrote the Court’s opinion, falsely claimed that this coach only wanted to offer a “short, private, personal prayer.””
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“while the Bremerton opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion — the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States — is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of “coercion.” There may even be five votes for Scalia’s position — that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.”
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“One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever — taxes that the nonbeliever must pay to avoid criminal sanctions — and use them to fund religious education.”
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“Read together, the Roberts Court’s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.”
“contrary to the city’s insistence, drag shows are clearly protected speech. “There is no question that governments have a legitimate interest in protecting children from genuine obscenity. But the City has not provided a shred of evidence that would implicate that legitimate interest. Moreover, that legitimate interest ‘does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.'”
Attempts at banning drag shows have become increasingly popular across the country, often with public officials citing the apparent “obscenity” of the performances, especially those that allow children to attend. However, this latest injunction shows yet again that drag performances are protected speech and that local governments, public colleges, and other state actors have no legal basis for attempting to restrict them.”
“” Professors are not mouthpieces for the government. For decades, the Supreme Court of the United States has defended professors’ academic freedom from governmental intrusion,” Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression (FIRE), tells Reason. “As the Supreme Court wrote in Keyishian v. Board of Regents: ‘Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.'”
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“Unfortunately, Rufo’s ideas aren’t hypothetical. In recent months, several legislative efforts—most notably in Florida—have attempted to quash professors’ academic freedom. “Legislative initiatives like the STOP Woke Act and HB 999 seek to use the power of the state to shut down speech and scholarship on politically disfavored views,” adds Cohn. “These efforts cannot be squared with our longstanding national commitment to academic freedom.”
An argument supporting censorship in the name of “the pursuit of truth as the telos of America’s public universities,” as Rufo claimed, is ultimately shortsighted. Not only does Rufo fail to see how the powers he would give the government could be wielded against his ideological allies, but he also fails to see how censorship ultimately runs counter to the same American values he claims to support.
“Professors must be able to teach, conduct research, and publish scholarship without fear of viewpoint-based retribution from the government,” says Cohn. “And students must be able to learn from faculty who are not muzzled by the state.””
“Signed into law by Republican Gov. Ron DeSantis in April 2022, the law prohibits private employers and university professors from endorsing certain concepts related to race and other categories of identity. The statute drew lawsuits almost immediately. A number of employers and a diversity consultant challenged a provision that says private employers may not require employees to attend a training or activity that promotes any of eight listed concepts.
Chief U.S. District Judge Mark E. Walker, writing for the U.S. District Court of the Northern District of Florida, Tallahassee Division, then issued an injunction against enforcing that provision. “Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely,” Walker wrote. “But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”
In November, Walker issued another injunction, this one blocking a similar section of the law that applies to university professors. He accused the state of essentially arguing that “professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves,” a position Walker described as “positively dystopian.”
“The First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” he concluded.
It is this November injunction the 11th Circuit just left in place.
“Conservatives who cheer on the Florida law should consider what liberal states—or, for that matter, a Democratic-controlled Congress—could do if allowed to engage in similar regulation,” Ilya Somin, a law professor at George Mason University, warns at The Volokh Conspiracy. “The same powers that Florida uses to target ‘woke’ employer speech can just as easily be used against conservative employers.””
“At the governor’s urging, Florida’s Republican-dominated Legislature is pushing to weaken state laws that have long protected journalists against defamation suits and frivolous lawsuits. The proposal is part DeSantis’ ongoing feud with media outlets like The New York Times, Miami Herald, CNN and The Washington Post — media companies he claims are biased against Republicans — as he prepares for a likely 2024 presidential bid.
Beyond making it easier to sue journalists, the proposal is also being positioned to spark a larger legal battle with the goal of eventually overturning New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court ruling that limits public officials’ ability to sue publishers for defamation, according to state Rep. Alex Andrade, the Florida Republican sponsoring the bill.”
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“the proposed bill goes further than simply decrying media bias. Free-press advocates call the measure unconstitutional and suggest it could have far-reaching consequences beyond major media outlets.
“I have never seen anything remotely like this legislation,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation. “I can’t say I have seen every bill ever introduced, but I’d be quite surprised if any state Legislature had seriously considered such a brazen and blatantly unconstitutional attack on speech and press freedoms.”
He added: “This bill is particularly remarkable since its provisions have the vocal support of a governor and likely presidential candidate.”
DeSantis’ office said he “will make a decision on the merits of the bill in final form if and when it passes and is delivered to the governor’s office.””
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“Andrade’s proposal incorporates many of the elements DeSantis called for during the roundtable, including:
— allowing plaintiffs who sue media outlets for defamation to collect attorneys fees;
— adding a provision to state law specifying that comments made by anonymous sources are presumed false for the purposes of defamation lawsuits;
— lowering the legal threshold for a “public figure” to successfully sue for defamation;
— repealing the “journalist’s privilege” section of state law, which protects journalists from being compelled to do things like reveal the identity of sources in court, for defamation lawsuits.
Stern said 49 states and several appellate circuits recognize a reporter’s privilege against court-compelled disclosure of source material and stressed that it’s essential for people to be able to speak to reporters without risking their jobs or freedoms.
“Journalists do not work for the government and it’s none of the government’s business how journalists gather news,” he added.
Andrade, however, said the privilege language in his bill would not allow a judge to force a journalist to reveal an anonymous source, but removes existing protections if they decide not to.”
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““The law protects journalists from being ‘compelled’ by judges to disclose anonymous sources, but if a journalist has been sued for defamation, and wants to avoid liability, this section makes clear that they cannot claim a special privilege to avoid disclosing the source of the defamatory information and also avoid liability,” Andrade said.
Critics of the bill took issue with the section about attorneys fees, saying it could add a financial incentive to file defamation lawsuits and erode the laws preventing retaliatory lawsuits filed to silence criticism. Florida, like other states, has anti-SLAPP (strategic lawsuits against public participation) laws designed to help stop frivolous lawsuits.
“One of my largest concerns with the bill is the rolling back of the anti-SLAPP protection for defamation defendants,” said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which advocates for free markets, free speech and limited governments. ”That’s just moving in the wrong direction.”
He said beyond large media companies, some of which have legal teams, the changes could affect the “ordinary guy” who leaves an “unfavorable Yelp review.”
“At one time, it was not considered ‘conservative’ to advocate for turning on the spigot to all sorts of troll-like civil litigation that will line the pockets of bottom-feeding plaintiffs’ lawyers,” Schulman said.
Stern said the new bill would leave those protections “toothless.” Under most anti-SLAPP laws, individuals can recover attorneys’ fees if they can show they were sued in retaliation for criticizing the government.”