THAT PESKY FIRST AMENDMENT

In 2001, Barack Obama said something interesting about the Constitution. It was, he said, “a charter of negative liberties” setting out what the government cannot do. That’s a very peculiar formulation because, rather than seeing the Constitution from the people’s viewpoint as a leash on tyranny, he saw it from the government’s viewpoint as an irritating restraint on its power. Today, when the Supreme Court heard oral argument in a pivotal free speech case arising from the government’s pressure on social media during COVID, Ketanji Brown Jackson made the same point, only more explicitly. These people really hate that you have the right to talk back.

The case is Murthy v. Missouri. Multiple plaintiffs (state attorneys general and “epidemiologists, consumer and human rights advocates, academics, and media operators”) filed suit complaining that the government did indirectly that which it cannot do directly:  Namely, it censored them, not by using its direct police power, but by putting pressure on social media outlets to censor any speech that ran counter to the government’s preferred COVID narrative (i.e., lockdowns, masks and, above all, forced vaccinations):

The plaintiffs argue that the defendants used public statements and threats of regulatory action, such as reforming Section 230 of the Communications Decency Act, to induce social media platforms to suppress content, thereby violating the plaintiffs’ First Amendment rights. The States of Missouri and Louisiana also alleged harm due to the infringement of the free speech rights of their citizens.

If you’re following the oral argument in this case, it’s clear that Ketanji (“Am I A Women?”) Brown Jackson (aka KBJ), the Supreme Court’s affirmative action hire, is desperate to protect the government. Just three snippets show her desire for government censorship, with the First Amendment as something to be brushed aside.

As a refresher, the First Amendment makes it clear that there are “no go” zones for the government because humans have inherent rights that a contractual government (and that is what our government is, via the contract known as the Constitution) cannot take away:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Over the years, the Supreme Court has acknowledged that there are occasions in which the government can control speech. For example, states may criminalize showing pornography (which is a form of speech) to minors, although you wouldn’t know that from the deference shown to the gay pornography flooding American schools. That’s because minors are a special, protected class. Going back to Anglo-Saxon times, the government may also criminalize speech that directly and immediately incites lawless action, such as riots or murder. We also police provably defamatory and fraudulent speech.

However, what the government cannot do per the agreement it made under the Constitution is silence opinions, especially opinions with political consequences. And yet, during COVID, the Biden administration used mafia-style threats (“Nice little social media company ya got here. It’d be a shame if something happened to it”) to push social media outlets into censoring speech with which the government disagreed. And no, it doesn’t matter that some of the media outlets happily acceded to those unconstitutional demands.

Individuals and principled state attorneys general sued, leading to today’s Supreme Court arguments. Jonathan Turley has an excellent real-time thread if you’re interested in some of the details.

I’m interested only in KBJ’s tyrannical take on speech. Three quotations show her fundamental misunderstanding of or, more likely, disdain for free speech.

First, KBJ seems confused about the analysis. The free speech analysis works, first, by determining whether the government censored speech; second, by using a strict scrutiny standard to determine whether there was a compelling state interest to do so; and third, if there was a compelling state interest, by determining whether the government used the least burdensome way possible to protect that interest.

However, in the following go-round with Louisiana’s Solicitor General, KBJ seems to believe that you just need to prove a state interest, and the government then has carte blanche to shut down speech. She eventually backs down, but her initial belief shines through:

And what constitutes carte blanche? An emergency:

In other words, once the government declares something—anything—to be a “once in a lifetime” whatever, it’s got the power.

But the most chilling thing of all was KBJ’s statement taking to its logical extreme Obama’s disdainful assessment of the entire concept of the Constitution; namely, that it’s a brake on the government’s power to get the job done:

We want our government to be hamstrung. The government controls the military, the police, the courts, and the prisons. The only thing protecting us against that aggregation of power is the government’s fidelity to the Constitution’s premise that we have inherent rights, as well as its willingness to abide by constitutional jurisprudence saying that, if the government infringes on those rights, it may do so only under the most compelling circumstances and in the most delicate way possible. But for KBJ, it’s the First Amendment that is the problem, for it is an irritant hamstringing a government that knows best.

I’ve been calling 2024 a year of clarity. Democrats believe that they are home-free and, therefore, can finally and fully let the mask drop. The Obama pretense of abiding by the Constitution and the Rule of Law is over. The Biden administration doesn’t even bother to pretend. In South Carolina, a representative made it clear that politicians, once elected, should ignore their know-nothing constituents. And in schools across America, teachers and administrators openly demand that children be sexualized and alienated from parents.

KBJ’s insistence that the Constitution is a barrier in the way of a benevolent, all-powerful government is just one more curtain pulled back on the Marxist revolution that the Democrat party has planned for us. The only vote for freedom in the upcoming election is for Donald Trump and those federal politicians who will support him. Any other vote will bring us four more years of Biden and the end of the Constitution.

Andrea Widburg is the deputy editor of American Thinker.