Next week, the Supreme Court will face a government censorship operation unprecedented in U.S. history.
The justices are scheduled to hear oral arguments in Marcy v. Missouri, a First Amendment challenge to the Biden administration’s pandemic-era censorship efforts. The New Civil Liberties Union, for which I am a litigator, represents prominent scientists whose speeches have been summarized on social media platforms as a result of federal action.
Billed as an effort to protect the American public from “misinformation” about the public health emergency, the incident records show that White House censorship efforts have been linked to pandemic-related information, including personal accounts about vaccines. It reflects the spread of its tentacles across public discourse on a variety of topics. Side effects and provably true statements. As the findings in this case made clear, the government also sought to suppress legitimate speech on a wide range of other subjects, including elections, parody, and gas prices.
The Fifth Circuit Court of Appeals upheld most of U.S. District Judge Terry Doty’s preliminary injunction, calling the administration’s actions in the case “orchestrated by federal authorities to violate fundamental aspects of American life.” It characterized it as a “coordinated campaign that puts people at risk.” They were right to do so.
The Constitution prohibits the government from abridging free speech, whether or not the effort rises to the level of coercion, ensuring that all Americans are able to listen, read, form opinions, and participate in public life. Guarantees the right to participate. Similarly, the Supreme Court has made clear that the government cannot enlist private companies to accomplish what it cannot do directly.
As the nearly 20,000 pages of records in this lawsuit attest, President Biden, like much of the executive branch, has been, and continues to be, cavalier about these basic civil liberties. There is. For example, in late 2021, Twitter Inc. executives bowed to relentless pressure from the White House to remove a parody video featuring first lady Jill Biden. The video, which is clearly not real, shows a child heckle the first lady in a profane manner as she reads her book to her students. White House senior communications aide Christian Thom submitted the video to Twitter for review on November 30, 2021. A staff member responded to Tom’s call six minutes later.
The platform applied a label to the video indicating it was edited for comedic effect. This did not satisfy the White House, which was relentless in its mission to silence critics. Even those whose critical messages were conveyed through comedy. Tom, digital strategy director Rob Flaherty, and first lady Michael LaRosa’s press secretary blasted the video on Twitter for weeks before the platform buckled and quietly removed it from the platform in late December.
Senior aides to the president have similarly, if not more, emphasized that attempts to summarize pandemic-related speeches are often successful. The White House, in close consultation with the Surgeon General, has also taken steps to censor undisputed truthful claims about the coronavirus.
The emails reflect the White House’s obsession with “borderline content” and the pressure platform executives are under to stay in the administration’s good graces. As Justice Doty explained, “borderline content” is “the truthful content of an individual’s experience, such as true but shocking claims or personal anecdotes, or the content of personal and civil liberties.” This often involves discussions about the choice of vaccination from different perspectives and concerns about distrust in the system. ”
In one particularly memorable exchange, digital director Flaherty demanded answers from Facebook after a Washington Post article accused the platform of fostering vaccine hesitancy.
Under the subject line “You’re Hiding the Balls,” Flaherty called on platforms to take further steps to censor what he called “borderline content.”
Another set of emails featuring Flaherty and other senior aides offers another definition of borderline content: “something that is questionable but cannot be proven to be false.” To be clear, the Constitution protects false speech, with limited exceptions such as fraud and defamation. As the court recognized, what is considered false one day may be recognized as true the next, so the idea that government can effectively act as a gatekeeper of truth is fundamentally flawed. There is a flaw. Attempting to silence information that is or may be true. This raises fears of oppression aimed at power and control, and is an alarming situation in a free society.
This kind of tyranny should be expected whenever a government ignores our civil liberties. Even Flaherty inadvertently acknowledged the flawed nature of the censorship operation in an email to Facebook in March 2021. “I will also be the first to admit that there is no easy solution to borderline content,” he wrote.
Flaherty was wrong. The Constitution provides a simple answer.
Jenine Younes is a litigation attorney with the New Civil Liberties Alliance. She represents defendants in Marcy v. Missouri Supreme Court.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
