At her confirmation hearings, Justice Ketanji Brown Jackson claimed she lacked the expertise to define “woman.” Just two years later, she did not hesitate to redefine the First Amendment and free speech as she advocated for the regime to bulldoze our constitutional liberties provided they offer sufficiently sanctimonious justifications.
This, apparently, was of greater concern to Justice Jackson than the revelations that the intelligence community held ongoing meetings with social media companies to coordinate censorship demands, that the White House explicitly demanded the censorship of journalists, and that the Department of Homeland Security was instrumental in manipulating citizens ahead of the 2020 presidential election.
But according to Justice Jackson’s outlook, those facts may have actually been encouraging. She scolded counsel, “Some might say the Government actually has a duty to take steps to protect the citizens of this country.”
Justice Jackson’s formulation inverts the structure of constitutional liberties. The Constitution does not limit the powers of citizens; it restrains our elected officials from tyrannical overreach. It is the law that “governs those who govern us,” as law professor Randy Barnett explains.
Impediments to state powers are not flaws in the system; they are the essence of the design. But Justice Jackson offers no deference to these constitutional restraints. Instead, she explained, “I am really worried about ... the First Amendment operating in an environment of threatening circumstances.”
Of course, the First Amendment was designed for environments of threatening circumstances. U.S. history offers no shortage of threats that could be justified to abridge our liberties—from cholera and yellow fever to polio and Spanish flu; from the redcoats and the XYZ Affair to the Red Army and the war on terror; from conquering the West to defeating the Nazis.
The Framers understood the ineradicable threat that power poses to liberty, which is why they were unequivocal that the government cannot “abridge” constitutionally protected speech, no matter the moral surety of the censors.
At times, the country has failed to live up to this promise, but those instances are rarely heralded. Justice Jackson’s deference to emergencies or “threatening circumstances” is precisely the logic that the Court used to intern the Japanese and jail Eugene Debs. More recently, censors invoked that familiar paternalism to justify censorship of the origin of COVID-19 and the veracity of Hunter Biden’s laptop.
But the Constitution demands a different path, as explained by Louisiana Solicitor General Benjamin Aguiñaga in response to Justice Jackson. The choice between liberty and safety is a false binary. “The Government can’t just run rampant pressuring the platforms to censor private speech,” Mr. Aguiñaga explained.
The Biden administration can promote its interests, deliver its own speeches, and purchase its preferred PSAs. It cannot, however, use vapid slogans of paternalism to usurp the First Amendment.
“When I see that the White House and federal officials repeatedly say that Facebook and the federal government should be ‘partners,’ [or] ‘we are on the same team.’ [GOVERNMENT] Officials are demanding answers, ‘I want an answer. I want it right away.’ When they’re unhappy, they curse them out. ... The only reason why this is taking place is that the federal government has got Section 230 and antitrust in its pocket. ... And so it’s treating Facebook and these other platforms like their subordinate. Would you do that to The New York Times, The Wall Street Journal, The Associated Press, or any other big newspaper or wire service?”
Meanwhile, Justice Jackson could not grasp the most basic tenets of the First Amendment or free speech. Instead, she fear-mongered with absurd questions of whether the State has a compelling interest in stopping teens from “jumping out of windows.”In the process, Justice Jackson revealed her intent to defenestrate the First Amendment alongside her fictitious adolescent victims. Her “biggest concern” is that the First Amendment may hinder the regime’s pursuit of power, just as it was designed to do.
Tyranny has long draped itself in cloaks of benevolent phrasing. The judiciary is meant to safeguard our liberties from aspiring tyrants, even if they espouse the socially fashionable shibboleths of the day. Justice Jackson does not just abdicate that responsibility; she appears to abhor it. We must hope her peers on the Court retain their oath to the Constitution.
It was especially striking for many people listening to these arguments to become aware of the astonishing lack of sophistication on the part of some of these justices, Justice Jackson in particular; others had their moments.
The sidewalks outside the court were filled with actual experts, people who have followed this case closely since its inception, victims of the censorship industrial complex, and people who have read every brief and scoured through the evidence.
These actual experts and dedicated citizens who know the facts inside and out stood on the sidewalks outside the case while the plaintiffs’ attorney scrambled within the time limits to introduce the topic, possibly for the first time, to these men and women who hold the future of freedom in their hands.
Unbeknownst to themselves, the justices themselves are victims of the censorship industrial complex. They could themselves have been plaintiffs in this very case, because they too are consumers of information using technology. And yet, given their status and position, they had to pretend to be above it all, knowing what others do not know, though clearly they did not.
It was a frustrating scene, to say the least.
Sadly, the oral arguments became bogged down in minutiae over plaintiff standing, the particular wording of this or that email, various far-flung hypotheticals, and hand wringing over what will become of the influence of our overlords should the injunction take place. Lost in this thicket of confusion was the bigger trajectory: the clear ambition on the part of the administrative state to become the master curator of the internet in order to disable the whole promise of a democratized communication technology and introduce full control of the public mind.
A clear-headed court would strike down the entire ambition. That will not happen, apparently. That said, perhaps it is a very good sign that at least, and after so many years of this deep-state meddling in information flows, the issue has finally gotten the attention of the highest court.
May this day become a catalyst for what is needed most of all: the formation of a hard core of informed citizens who absolutely refuse to go along with the censorship no matter what.
