OPINION:
For a court that’s supposedly “far right,” the Supreme Court continues producing decisions that frustrate anyone trying to advance the partisanship narrative. A pivotal case released Wednesday proves the liberal wing of the bench isn’t just there for show.
Justices Ketanji Brown-Jackson, Elena Kagan and Sonia Sotomayor formed a majority with the establishment wing — Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh — to protect the Biden administration’s sweeping social media censorship initiative.
These six judges said the administration did nothing wrong in bullying Twitter, YouTube and Facebook into silencing users for spreading what it called “misinformation” about COVID-19. In hindsight, we know the government-appointed guardians of the truth were actually the ones deceiving Americans about things like natural immunity and the possibility that COVID leaked out of a Chinese lab.
But officials at the highest levels of the White House, the Department of Homeland Security and the FBI were desperate to suppress those truths. Beginning in early 2021, these senior government employees held regular meetings with Big Tech firms, supplying lists of political opponents to be secretly condemned to digital oblivion. Since these tech companies are staffed by obedient leftists, they didn’t push back.
The misguided majority draws the wrong conclusion from compliance. It’s true the tech giants were not doing something they were wholly unwilling to do. The problem is they were being directed by federal agents to accomplish what the government is prohibited from doing under the First Amendment.
When a sophisticated gentleman walks into a bodega with a baseball bat saying, “It would be a shame if something happened to your nice little store,” the cashier is going to hand over the recommended amount of protection money. In places like New York, where shoplifters are no longer prosecuted, the merchant might even appreciate the mob’s protection.
That doesn’t make the transaction voluntary. Nonetheless, the court went out of its way to reject the complaint of censorship targets because they failed to produce sufficient evidence establishing “a substantial risk of future injury” from the government’s conduct.
Requiring such evidence upfront raises an insurmountable barrier to challenging federal overreach. These events took place behind closed doors. We had only a taste of what happened because Elon Musk decided on a whim to blow $44 billion buying what is now X. Mr. Musk released files documenting the government’s censorship drive at Twitter, but even that wasn’t enough for the establishment justices.
Reliably conservative Justices Neil Gorsuch, Clarence Thomas and Samuel Alito recognized their colleagues dropped the ball on “one of the most important free speech cases to reach this Court in years.”
In their dissent, they stated that the federal conduct here “was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision … will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”
Chief Justice Roberts should know better, but as an institutionalist, he is averse to the sort of bad publicity that would rain down on the court if he crossed this administration.
After Mr. Biden’s disastrous debate performance Thursday, the odds Donald Trump might have the privilege of appointing another justice in the four years ahead have increased. He ought to think twice about heeding recommendations from the groups that saddled us with establishment justices unwilling to defend free speech.
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