Thread by @bhweingarten

🧵My impression walking out of SCOTUS yesterday, having witnessed oral arguments in Murthy v. Missouri was demoralization. The Censorship Industrial Complex proved itself in the case to have cajoled, coerced, and colluded with social media platforms to censor Wrongthinking Americans en masse, and yet that the government's "partners" abridged clear protected political speech wasn't clearly presented and argued. Whether we will retain anything resembling a First Amendment likely hinges on Chief Justice Roberts and Justices Kavanaugh and Barrett. Herein, a thread I will update as I parse the transcript🧵 nypost.com/2024/03/18/opi…

Multiple times the U.S. government lamented how the plaintiffs in the case were using the courts to "audit" their efforts to conspire with social media platforms to censor us on the Hunter Biden laptop story, election integrity and outcomes, and COVID. Unmentioned is that without Murthy v. Missouri we would've never known about this conspiracy to kill our First Amendment. Is the government's issue with the audit or with what the audit revealed about its depredations?

Principal Deputy Solicitor General Brian Fletcher sought to make this case about the government using mere "persuasion" (legal) versus "coercion" (illegal) to pressure social media companies to violate the First Amendment on its behalf as deputized speech police.

While there was a raft of evidence of coercion, Philip Hamburger -- whose @NCLAlegal represents some of the plaintiffs in Murthy -- persuasively makes the case that that isn't the right standard. As the plaintiffs wrote in their brief, citing Hamburger: "The First Amendment does not require a strict showing of explicit coercion, but capaciously protects the freedom of speech from any 'abridging' (i.e., diminishing) of that freedom."

Another key plank of the government's case is that the freeze on fed-led speech policing imposed by the Louisiana District Court and the 5th Circuit Court of Appeals "radically expanded the state action doctrine by holding that even concededly non-coercive communications, like the CDC's public health advice [I would put that in air quotes], can transform private platforms' editorial choices into state action."

Thing is, if we do not "radically expand[] the state action doctrine" -- idea being that when a state pressures, coordinates, and colludes with private entities, it transforms them into state entities restricted by the First Amendment, etc. -- then we're going to see the state weaponize virtually every institution against Wrongthinkers to do its bidding.

If you want to avoid a social credit system, I'm not sure how you don't expand state action doctrine.

That's one reason this case transcends the First Amendment.

Worth noting upfront, beyond the "persuasion" versus "coercion" argument, and the fact that the First Amendment protects the government from "abridging" speech -- the district court emphasized that "significant encouragement" of a third party to violate the First Amendment on the government's behalf is a sufficient standard too.

This calls for a stricter standard to which government officials must adhere. And shouldn't they be subjected to such a standard to protect us from state speech policing?

The appellate court agreed that the Biden White House, FBI, CDC, Surgeon General's Office and CISA all engaged in "significant encouragement."

The feds naturally disagreed with this analysis, and unfortunately so too may SCOTUS.

Justice Thomas early in questioning calls out the government over its belief in an expansive government right to speech (but, left unsaid, apparently a far more narrow right for Americans).

USG: "It's not a right that comes from the First Amendment. It's a feature of our constitutional democracy."

Is it a "feature of our constitutional democracy" though to use government speech (backed with the awesome powers of the federal government) to deputize speech police and abridge our rights?

Justice Sotomayor presses Fletcher to explain how the preliminary injunction in question freezing federal speech policing by proxy harms the government.

Fletcher, framing this case as if the government is largely concerned with combatting foreign threats through consorting with social media platforms regarding content moderation -- when in reality it used the foreign pretext to target Americans on a whole bevy of political and public policy issues -- says "if the injunction were put in place, the FBI would have to think very hard about" its communications with platforms.

That's the whole point though, isn't it? The government should have to think long and hard when it is considering taking action that could violate our rights.

The government also "think[s] it's really troubling, the idea that...classic bully pulpit exhortations, public statements urging actors to behave in different ways, might be deemed to violate the First Amendment."

But those public comments were only a fraction of the plaintiffs' case, which showed that privately -- and with the threat of adverse consequences -- the feds repeatedly browbeat and badgered platforms to censor Wrongthinkers

The other big argument the government continued to return to was a lack of "traceability" from government words to social media company censorship. I thought the plaintiffs could've argued this much more vigorously as they did at the lower courts based on the voluminous evidence compiled.

As the district court found:

"A drastic increase in censorship, deboosting, shadow-banning, and account suspensions directly coincided with Defendants’ public calls for censorship and private demands for censorship...The Plaintiffs’ theory of but-for causation is easy to follow and demonstrates a high likelihood of success as to establishing Article III traceability"

The government also says "we certainly don't think that they [the plaintiffs] have shown that they face the sort of imminent threat of future injury that's required to satisfy Article III."

Translation: It wants the Censorship Industrial Complex to be fully operative in 2024

Justice Alito presses the government on it's dismissing the findings of the district and appellate courts regarding the plaintiffs' standing

The government dismisses the idea that there are smoking guns in Murthy v. Missouri of government directing censorship and then the social media companies censoring.

Yet repeatedly government officials flag specific posts and accounts for platforms, press the platforms to censor such content, ask the platforms what actions they've taken, suggest content moderation policies and ask if the platforms have updated accordingly, etc. The direct and indirect pressure was unending.

Look no further than my testimony regarding CISA -- which drew largely from the discovery in Murthy. And that was simply one DHS sub-agency.

This is a disingenuous argument I wish the plaintiffs had hammered home at oral arguments weingarten.substack.com/p/full-testimo…

Justice Alito points to the government-as-mafia subtext underlying this case -- that when it constantly browbeats and demands that a private company do X, Y, Z, it does so with immense power. What's more, it does so here with platforms who use a Section 230 shield while at the same time acting as publishers, not neutral conduits for communication

The government makes a very telling comment here that deserves emphasis. It claims turning the social media platforms into deputized speech police could be attributed in part to "an effort to get Americans vaccinated during a once-in-a-lifetime pandemic. And I really think that piece of context, it doesn't change the First Amendment principles, but it's relevant to how they apply here."

The thing is, when there's a crisis and major public policy issues being discussed, that is precisely when you need MORE SPEECH, MORE SCRUTINY. Not less. There's no exception as the government notes for the First Amendment because government declares a crisis or emergency.

The slippery slope is obvious.

So is the idea that government will use myriad pretexts going forward to censor us if they evade punishment in Murthy

...This is to say nothing of the fact that government got so much wrong with respect to the pandemic.

Its tyrannical approach to dissenting views of course was anti-scientific, and arguably did great damage to public health while at the same time eroding liberty and justice

Here's how the government alibis the idea that there's anything insidious about government and social media platforms serving as "partners" in censoring us

Justice Alito pressed the government on defending its berating of the social media platforms over their need to engage in greater COVID censorship in one humorous exchange

Note again the government lamenting that the real problem here is that we the public might engage in a "sprawling audit" of its efforts to chide, cajole, and coerce social media platforms to silence us.

Imagine applying this "anti-sprawling audit" standard to, say, Donald Trump

In a rare instance of skepticism, Justice Kavanaugh briefly presses the government on its "partnering" with the social media platforms in content moderation. The government characterizes the relationship as an "open door."

But is it an "open door" when you're being hectored publicly about the danger of "mis-, dis-, and mal-information" proliferating on your platforms, and officials all across the government are engaging in a "sprawling audit" of your efforts, constantly pestering and browbeating you to censor more, and doing it all with the potential power to break you via regulation and law?

Justice Jackson is perhaps even more radical than the government in her view of the First Amendment. By her logic you'd think it's written in the Constitution that the state has an inalienable right to censor the citizen when it deems that circumstances merit it -- as well as that the state is omniscient

One key related distinction that the plaintiffs only get to very late in the arguments is that the government can provide competing speech to Wrongthinkers -- it can't silence them, directly or by proxy.

As Louisiana Solicitor General J. Benjamin Aguiñaga will argue later, "if the government thinks there's false speech out there, the remedy for that is true speech"

Justice Gorsuch gets the government to concede that not just threats but inducements could each be coercive -- including regarding Section 230.

He also presses the government on President Biden using the bully pulpit to claim platforms were "killing people" by allowing people to engage in Wrongthink regarding COVID

Chief Justice Roberts asks the government to essentially define "coercion."

The government's position is that "if there's something that the government is saying that we're going to exercise government power in some way unless you change your speech in some way or stop distributing the speech of others, if it's reasonably understood as that sort of a threat, that's a First Amendment problem"

Chief Justice Roberts presses further regarding the "reasonable person" standard for determining coercion, and points to the idea that context matters -- seemingly to the government's benefit. That Roberts doesn't push back here about the nature of the feds' interactions with the social media platforms is very telling

U.S. government: "when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly."

If the "persuading" -- badgering, browbeating, threatening -- the government engaged in in Murthy, leading to arguably the greatest assault on free speech in human history, is allowed to stand, think about what will come next

Justice Thomas presses the government on the idea that the government and social media platforms could've colluded to censor speech, rather than that there was coercion.

The back-and-forth also seems to approach antitrust territory, about government-induced collusion between the platforms to censor speech

The government wants you to believe that the censorship regime imposed under pretext of COVID and the 2020 election won't persist and grow infinitely more pervasive and sophisticated

Justice Kavanaugh seems to offer an out to the government here, defending the Joe Biden line about social media companies "killing people," and then suggesting the line about what might become a First Amendment violation comes to whether the government threatens explicit adverse action to drive a change.

He also doesn't push back on the "significant encouragement" not counting argument put forth by the feds.

Nor does he push back on the government concerns about its speech being "chill[ed]"

The government defends its censorship-by-proxy activities under color of "national security," public health, and "election integrity issues" -- the very ones it used to censor Wrongthinking Americans at mass scale as demonstrated in Murthy

Justice Barrett picks up Justice Thomases line of questioning regarding government converting the social media platforms into state actors via collusion without coercion.

She does not push back extensively.

She also concedes the government's perspective challenging the facts of the case

The government claims that Murthy in large parts rests on how you define "significant encouragement" when it comes to whether the feds deputize the social media platforms as speech police

Once again the feds feign that this case is about the government simply being able to communicate information about foreign threats or public health, rather than that they used claimed foreign threats to target Americans' protected political speech, and a pandemic to censor dissenting views on clearly disputed matters of public health policy

Justice Thomas gives the plaintiffs the opportunity to argue that the case doesn't have to hinge on whether the government clearly engaged in "coercion" to make the social media platforms its speech police.

Solicitor General Aguiñaga concurs that "regardless of the means that the government tries to use...to pressure the platforms to commit censorship against third parties, the Constitution really doesn't care about that. It's the fact that what the government is trying to accomplish is the suppression of speech."

Immediately the pro-censorship wing of the court steps in.

Justice Sotomayor attacks the plaintiffs claiming "you're mixing...situations...and confusing legal doctrines."

Justice Jackson argues "there may be circumstances in which the government could prohibit certain speech on the Internet or otherwise."

How about speech concerning the security of mail-in ballots?

Or a story about the contents of the laptop of a presidential candidate's influence-peddling son?

Or the efficacy of a vaccine?

Justice Kagan also converts government into a victim of speech suppression, rather than as an aggressor who helped get millions and millions of pieces of content censored

Justice Kavanaugh seems to pick up the baton from Justice Kagan

Chief Justice Roberts argues the government is "not monolithic...and that has to dilute the concept of coercion significantly."

He raises a hypothetical about two agencies arguing for different things that is so far afield of the case it's silly.

Big red flag about where he's likely to come down in Murthy.

Justice Kagan raises a hypothetical about terrorists engaging in protected speech on platforms.

Again, it's so far afield of the case it's as if the justices are running interference for the feds

Justice Kagan suggests a lack of understanding of the findings of fact in Murthy, but the plaintiffs could have more forcefully corrected the record.

Bottom line: Government constantly peppered social media platforms with takedown requests, "flagged" offending content, suggested they expand their censorship policies, constantly checked in to ask if content had been taken down and policies changed, browbeat them publicly and privately, funded and coordinated putatively private actors to surveil social media and do the same, and the platforms went out and censored speech accordingly en masse.

This was almost universally core political speech that the government's deputized speech police quashed.

If the government's theory holds and this case falls, why can't the party in power lean on social media companies to completely silence their political opposition?

Is that perfectly legitimate provided the platforms are merely "persuaded" to censor half the country?

After Justice Sotomayor challenges Aguiñaga on standing, Justice Barrett says she is "confused" about plaintiffs' position. "It sounded like you were articulating different standards depending on -- a different legal standard depending on different factual circumstances."

Aguiñaga leans on what to me should've been the key argument of the case: Government "can't do indirectly what it's constitutionally prohibited from doing directly."

Justice Barrett presses again on where the line is in terms of "encouragement" versus "significant encouragement"

Justice Barrett then goes into yet another hypothetical unmoored from Murthy on doxxing. This case isn't about law enforcement officials being able to apprise platforms of threats to life and limb. It's about the systematic targeting of core protected political speech

Justice Barrett's reply to Aguiñaga suggests serious skepticism of this case, which, combined with Chief Justice Roberts' skepticism, could doom it

A lawyer may have a good answer for this, but I can't for the life of me understand why Aguiñaga did not distinguish between the censored protected core political speech at the heart of this case, and the hypotheticals raised by the justices

Then there's this hypothetical about government telling social media platforms to take down posts encouraging people to jump out of windows. Seriously.

Should the government direct platforms to take down any post referencing junk food, since junk food makes people overweight and causes incalculable harm for public health?

Chief Justice Roberts pushes further down the hypothetical rabbit hole, seemingly showing further skepticism of a case that really isn't at hand in Murthy. Yes, the feds will say the censored pursuant to a pandemic, but that's a disingenuous characterization of what went on

Justice Alito brings the actual case back to the fore.

Justice Barrett noted earlier that this case has implications for others.

So too does Aguiñaga, who says "if we don't have a remedy in this case, then it's hard to see how there will ever be a remedy for a future plaintiff who turns out to be censored but it's difficult for that person to even identify whether that censoring actually happened."

I would go much further. If there's no remedy in this case the Censorship Industrial Complex will grow 1,000 feet higher and wider. It will get infinitely more aggressive, pervasive, and likely surreptitious having now attracted the attention of the courts to boot.

Justice Kagan again gives substantial deference to the government -- which I fear will ultimately reflect the Court's posture.

She also mischaracterizes voluminous smoking guns and pieces of evidence of government demanding takedowns of content and receiving them

Justice Gorsuch raises the issue of this being a universal injunction, suggesting perhaps he wants the freeze on speech policing narrowed

This was the point at which it felt, as an observer, that Aguiñaga -- having been put on his back foot -- was willing to start conceding certain issues.

He replies: "we're completely fine if you want to limit the injunction to the five platforms as to which we were able to get preliminary discovery. That's completely fine with us. If you want to limit just to the seven plaintiffs, also completely fine"

And then Aguiñaga pleads: "I think the most important takeaway in this case is that the Court has to say something in our favor on the merits. The government can't just run rampant pressuring the platforms to censor private speech."

That is what's at stake, but I'm not confident the Supremes were convinced

Justice Kavanaugh shows further skepticism of the case here, drawing lines between "significant encouragement" and "coercion," takedown requests of "factually erroneous information" versus "a viewpoint that we disagree with"

Justice Kavanaugh asks why when a request comes from the government it takes on a different character "implicitly threatening adverse consequences" to the plaintiffs.

Of course, government is force. Its censorship requests or demands are not equivalent to John Does.

And it has no right to abridge our speech

Justice Kavanaugh presses still further on government-driven takedowns of content, raising a hypothetical of the military calling for information to come down. Again, easy to see how the speech policing powers the justices are talking about could be abused and weaponized. They were in Murthy

Justice Barrett presses essentially on the need for their to be an overt threat of adverse government action against social media platforms for plaintiffs to make their case.

Again, she seems deferential to the government in this exchange

Justice Jackson went viral for saying "my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods."

Notwithstanding her turning of the First Amendment on its head, and the fact that the preliminary injunction in Murthy doesn't prevent government from saying whatever it wants publicly, the statement should've gone viral because it seems to represent the perspective of not only the U.S. government but perhaps a majority of the Supreme Court.

That's the takeaway from the lines of questioning in oral arguments

Justice Jackson's view of the role of government and free speech. Will it prove radical, or effectively the perspective of the Supreme Court?