Justice Kentanji Brown Jackson expressed her concerns during oral arguments on Monday in a case involving social media censorship, stating that taking an overly broad view of the First Amendment could severely limit the government’s ability to protect and serve its citizens.
The case was presented by the Republican attorneys general of Louisiana and Missouri, who accused the Biden administration of using its power to suppress free speech on social media platforms during the 2020 election and the COVID-19 pandemic. The district court issued a preliminary injunction in July, which was then upheld by the U.S. 5th Circuit Court of Appeals in September.
Justice Jackson engaged in a dialogue with Louisiana Solicitor General Benjamin Aguiñaga, posing the question of whether strict scrutiny would be necessary in determining if the government had a compelling interest and if their actions were the least restrictive means of impacting free speech. Aguiñaga responded that the strict scrutiny framework would be applied at the end of every First Amendment analysis.
Jackson pointed out that not every situation where the government’s actions have an impact on free speech would necessarily be considered a First Amendment violation.
Kentaji Brown Jackson grills LA solicitor general, says that because the govt can occasionally censor, they can also occasionally coerce:
KBJ: “Whether or not the government can do this… depends on the application of our First Amendment jurisprudence.
There may be… pic.twitter.com/LmoL7bZDQY
— System Update (@SystemUpdate_) March 18, 2024
The solicitor general argued that the government had a duty to protect its citizens, especially in times of crisis. Jackson expressed her concern that by taking such a broad view of the First Amendment, it could hinder the government’s ability to address dangerous situations and threats.
Justice Samuel Alito also raised the issue of the government treating social media platforms as their subordinates, citing communications and meetings between federal officials and platform employees.
Principal Deputy Solicitor General Brian Fletcher responded by stating that the context of the COVID-19 pandemic should be considered. During this time, there was a concern that the dissemination of false information about the vaccine on social media was hindering efforts to combat the pandemic.
Justice Jackson: "My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods." pic.twitter.com/Ix6g7ptU6v
— Jeremy Art (@cspanJeremy) March 18, 2024
Numerous conservative groups, including Leadership Institute, Eagle Forum, Gun Owners of America, and The Western Journal, filed an amicus brief in the case. They argued that anti-conservative viewpoint suppression was a significant issue during the 2020 election, citing the collaboration between the FBI and social media platforms to censor reports of Hunter Biden’s “laptop from hell.”
According to the groups, the practice of censorship by the government must be stopped before it destroys the foundations of our constitutional republic.
Justice Alito: "The government is treating social media platforms like their subordinates."
You CANNOT outsource censorship and call it constitutional.
You CANNOT have the FBI harassing Facebook and not call it coercion.
You CANNOT suspend the Constitution because you say… pic.twitter.com/wiHD7svIRA
— Charlie Kirk (@charliekirk11) March 18, 2024
Justice Jackson and other conservative voices on the bench and in the amicus brief believe that the government has a duty to protect the rights and safety of its citizens, even if it means interacting with social media platforms to combat the spread of false information. They argue that taking a strict view of the First Amendment could limit the government’s ability to address pressing issues and prevent viewpoint suppression, which is a threat to our democracy.