The good news is that a reckoning with the Biden administration’s policy of telling companies to censor things they don’t like is coming. The Supreme Court will take up the Louisiana ban on the administration censoring political opponents via private companies. The bad news is that Roberts, Kavanaugh and Amy Coney Barrett decided to sign on letting the Biden administration go on doing it for another year because the First Amendment is just a theory.
Read the Alito dissent on the majority issuing a stay on an order blocking the Biden administration’s censorship. (Alito was joined by Thomas and Gorsuch.)
Today, however, a majority of the Court, without undertaking a full review of the record and without any explanation, suspends the effect of that injunction until the Court completes its review of this case, an event that may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.
This case began when two States, Missouri and Louisiana, and various private parties filed suit alleging that popular social media companies had either blocked their use of the companies’ platforms or had downgraded their posts on a host of controversial subjects, including “the COVID–19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story.”
According to the plaintiffs, Federal Government officials “were the ones pulling the strings,” that is, these officials “‘coerced, threatened, and pressured [the] social-media platforms to censor [them].’”
… To stop this “campaign,” the injunction, as it now stands, prohibits the covered officials from doing two things. First, they may not “coerce” social media platforms to make “content-moderation decisions.” Second, they may not “meaningfully contro[l]” social media platforms’ “content-moderation” efforts. Displeased with these restrictions, the Government filed an emergency application asking us to stay the effect of this injunction pending certiorari…
Despite the Government’s conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified. The majority takes this action in the face of the lower courts’ detailed findings of fact…
At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.
Left unsaid by Alito is that the Biden administration will be able to continue censoring opposing views into 2024 as the presidential campaign continues to get underway.
The Biden administration claimed that being unable to censor political dissent during a presidential campaign would cause “irreparable harm” while Alito argues that censoring political dissent will cause “irreparable harm”.
Roberts, Kavanaugh and Amy Coney Barrett sided with the Biden administration. That does not bode well for the actual case, but we shall see. If the Biden administration wins this one, the First Amendment effectively becomes a dead letter on the internet.
Should a president be able to censor his political opponents? Stay tuned.