Justice Ketanji Jackson justifies government censorship of Americans' online speech by invoking 'duty' to 'protect' citizens

The Supreme Court heard arguments in the Murthy v. Missouri case, in which the attorney general from Missouri brought a case claiming that the Biden administration violated the First Amendment in colluding with social media platforms to suppress and censor Americans' speech on social media platforms.

The focus of the questioning by the justices was on the definition of coercion and the standing of Missouri having brought the case.

For Justice Ketanji Brown Jackson, however, the key element was that in certain, heightened conditions, the government should have the right to suppress speech.

"My biggest concern is that your view is that you have the First Amendment hamstringing the government in significant ways in the most important time periods. I mean, what would you have the government do? " Jackson asked.

"I've heard you say a couple of times that the government can post its own speech, but in my hypothetical, 'kids this is not safe, don't do it,' is not gonna get it done," she continued.

"So I guess, some might say that the government actually has a duty to take steps to protect the citizens of this country and you seem to be suggesting that that duty cannot manifest itself in the government encouraging, or even pressuring platforms to take down harmful information."

Jackson said she was "really worried about that."

In her view, the government can use a crisis or other major event to suppress the free speech of Americans when the government deems that it would be unsafe for citizens. This is an argument that was made by the Biden administration each time the public learned of their efforts to suppress online speech that went against their narrative, from Covid to Hunter Biden's laptop to the outcome of the 2020 election.

Attorney for the government Brian Fletcher claimed that the government can use their influence to persuade private parties to take action in a lawful way, and claimed that government officials telling social media companies that their algorithms are harmful falls under that category.

He argued that the government is able to use the "bully pulpit" to encourage ideas to be elevated or suppressed.

Questions arose as to the imminent threat of harm, and if the plaintiffs could prove they had standing to bring the case at all.

Benjamin Aguiñaga for Missouri said that the government set out to suppress speech and that the government can't do indirectly what the government is prevented from doing directly.

Aguiñaga spoke about the nature of the communication between government and social media platforms, saying that the government's behavior in undertaking their task, behind closed doors and as quietly as possible, indicates that they knew they were engaging in censorship.

Sotomayor had an issue with the evidence itself, saying "I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to — at least in one of the defendants, it was her brother that something happened to, not her. I don’t know what to make of all this because I am not sure how we get to prove direct injury in any way."

The case, per former Missouri AG Andrew Bailey who brought the suit, exposed the deep censorship that went on between the Biden administration and social media platforms that directly censored Americans online.

After he brought the case, a lower court put an injunction on the Biden administration and told them they were no longer permitted to have communication with social media companies. The Biden admin asked the Supreme Court for an emergency ruling against that, which was given, and the case made its way to the court.