There was a sturdy conservative outrage myth circulating around a while back that there was something nefarious afoot regarding the Biden administration and the various social media platforms. The administration was in contact with various companies to try to stanch the flow of egregious misinformation, most of it concerning the pandemic, and most of it coming from assorted conservative chop-shops and idea mills. This prompted a feverish response from said chop-shops and idea mills and their running buddies in the media. Censorship! Jackboots! Remember The Twitter Files? That was a diverting escapade. The attorneys general of Louisiana and Missouri took it seriously enough to file a lawsuit alleging that the administration was running a massive assault on the First Amendment. They were joined by a number of social media figures. On Monday, the lawsuit arrived before the carefully manufactured conservative majority at the Supreme Court and, apparently, it landed there like a big dead fish. From the Washington Post:
A majority of justices from across the ideological spectrum expressed concern about hamstringing White House officials and other federal employees from communicating with tech giants about posts related to public health, national security and elections that the government deems problematic. Justices Elena Kagan and Brett M. Kavanaugh, who previously worked in Democratic and Republican administrations, respectively, suggested that such exchanges were routine occurrences and did not amount to government censorship or coercion in violation of the constitutional right to free speech. Chief Justice John G. Roberts Jr. seemed to agree, noting that the federal government has numerous agencies that do not always speak with a single voice. “It’s not monolithic,” he said in an exchange with the attorney representing Louisiana. “That has to dilute the concept of coercion significantly. Doesn’t it?”
Moreover, as Justice Elena Kagan pointed out while questioning the lawyers representing Louisiana, the evidence that the government pressured the companies to take down the posts in question was...ah...thin.
Several justices said the individuals could not show a direct link between the government’s pressure on the platforms and the tech companies’ removal of posts that the government deemed problematic. Kagan pressed Louisiana’s lawyer for evidence that the government — not the social media companies — was responsible for taking down the posts at issue. “How is it government action as opposed to platform action?” Kagan asked.
The case percolated up through the conservatized federal judiciary including, inevitably, the Fifth Circuit Court of Appeals. On the way up, it found friendly judges who were willing to posture on the sanctity of the First Amendment like high-school debaters. This, alas, is no longer very much of a surprise.
The District Court judge in Louisiana who heard the lawsuit ruled against the Biden administration, saying it appeared to have operated “the most massive attack against free speech in United States’ history.” The court’s order barred thousands of federal employees from improperly influencing tech companies to remove certain content. The U.S. Court of Appeals for the 5th Circuit narrowed the decision, however, saying the order applied to a smaller set of government officials and agencies, including the surgeon general’s office, the White House, the Centers for Disease Control and Prevention and the FBI. A three-judge panel of the conservative appeals court said the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” The panel also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
The fish died somewhere between the Fifth Circuit and the Supreme Court. Services were held on Monday.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.
