Federal Authorities Argue Exceptional Pandemic Justifies First Amendment Infringements
An unprecedented legal debate unfolded at the Supreme Court as an attorney supported the stance that federal emergencies could mitigate First Amendment rights. This argument fuelled a contentious discussion on the balance between public safety and free speech.
Justice Samuel Alito posed a pointed inquiry to U.S. Principal Deputy Solicitor General Brian Fletcher about whether the administration considered the print media as allies, echoing the sentiment of a unified effort with the federal government. This came amid concerns over the government potentially treating digital platforms as mere extensions of its will by soliciting direct content censorship.
Context of Crisis
“Potentially in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic,” Fletcher conceded, acknowledging the exceptional circumstances.
It doesn’t change the First Amendment principles, but it’s relevant to how they apply here. And I think it’s important to understand that at this time, this was a time when thousands of Americans were still dying every week, and there was a hope that getting everyone vaccinated could stop the pandemic, and there was a concern that Americans were getting their news about the vaccine from the platforms and the platforms were promoting, not just posting but promoting bad information.
Alito’s Counterargument
Alito highlighted the distinction in pressures felt by traditional media—such as print, broadcast, and cable—and online platforms, which faced federal demands to tweak algorithms. “It struck me as, wow, this is not what I understand the relationship to be,” he reflected on these unprecedented actions.
Federalist Senior Legal Correspondent Margot Cleveland labeled the government’s justification as “horrible” for multiple reasons:
- Emergencies don’t override First Amendment protections
- Censorship extended beyond the pandemic to elections
- Censorship touched on revelations about Hunter Biden
OMgosh…the “once in a lifetime” of vaccination for COVID! That is a horrible argument!
1) because an emergency doesn’t trump 1st amendment;
2) it happened with elections
3) it happened with Hunter Biden. — Margot Cleveland (@ProfMJCleveland) March 18, 2024
Government’s Algorithmic Overreach
Joy Pullmann, Federalist Executive Editor, noted that a federal Cybersecurity agency established a private entity favoring Democratic perspectives to regulate online election-related speech.
“Much of the information restricted by this algorithmic censorship is indeed true, including the legitimacy of Hunter Biden’s laptop,” Pullmann added, citing algorithmic interference which may have skewed public perception.
The federal initiative to suppress implicating information during the 2020 election concerning the Democrat’s nominee and his son’s business dealings increased after President Joe Biden’s election. The present Murthy v. Missouri Supreme Court case exemplifies the extent of this digital public square control.
Justice Jackson’s Perspective
Justice Ketanji Brown Jackson questioned if the platforms were coerced into censoring speech. “I’m interested in your view that the context doesn’t change the First Amendment principles,” Brown observed. She argued that heightened scrutiny is warranted, but not an outright prohibition, when the government seeks to provide accurate information during a significant public health crisis.
Jonathan Turley, a law professor and legal analyst, found Jackson’s suggestions that some coercion may be permissible to be a concerning stance for those advocating free speech.
…Justice Jackson just nudged Fletcher back from his concession that, if there was coercion, there might be a first amendment violation. Jackson suggested that some coercion might be allowed in “a once in a lifetime pandemic.” That question is chilling for free speech advocates
— Jonathan Turley (@JonathanTurley) March 18, 2024
Tristan Justice is the western correspondent for The Federalist and the author of ‘Social Justice Redux’, covering culture, health, and wellness topics. His insightful commentary has been featured in prominent media outlets. Engage with his works by following @JusticeTristan on Twitter.
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