Supreme Court Weighs Limits of First Amendment in NRA and Tech Censorship Cases Amid ‘Ministry of Truth’ Fears

Gun Rights

The Supreme Court is pondering two cases that test the limits of the First Amendment. One asks if a state can financially kneecap a civil rights organization whose views it opposes; the other, if the federal government can pressure social media platforms to censor speech it deems “disinformation.”

When President Madison authored the Bill of Rights, he felt his task pointless. In times of crisis — war, famine, and pestilence — he felt the ten amendments would prove mere “paper barriers” to government action, and so they often have.

With the advent of social media, the First Amendment faces digital versions of the overreach that Madison feared. President Biden’s efforts to police disinformation on social media, likened by a federal judge to the “Ministry of Truth” from George Orwell’s “1984,” is only the latest attempted end-run.

In the first case on yesterday’s docket, NRA v. Vullo, the National Rifle Association argued that the former governor of New York, Andrew Cuomo, tasked a state official, Maria Vullo, “to use the regulatory power” to “financially blacklist” the organization.

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Ms. Vullo’s methods, the NRA states, included “coercing banks and insurers to cut ties … to suppress its pro-Second Amendment speech.” These “threats” followed outrage over the massacre at Parkland, Florida, which many on the left blamed on lobbying for the right “to keep and bear arms.” 

The American Civil Liberties Union’s national legal director, David Cole, argued on the NRA’s behalf. “The First Amendment,” he said, “prohibits absolute censorship or suppression of speech, but it also prohibits the imposition of any burden on speech because of its content.”

Justice Neil Gorsuch, on the right, suggested that the NRA might have “a retaliation claim.” Justice Ketanji Brown Jackson, on the left, called this “a species of First Amendment violation” and said, therefore, that the NRA’s argument “makes perfect sense,” an indication that a majority is leaning in its favor.

Missouri and Louisiana brought the second case, Murthy v. Missouri, against the surgeon general, Dr. Vivek Murthy, and others. The states say the Biden Administration used the FBI and CDC to coerce social media platforms to remove posts including those questioning the validity of the 2020 election.

The White House, according to the lawsuit, pressured Twitter and Facebook to censor what it judged to be “misinformation.” The plaintiffs cite e-mails from the Biden Administration’s coordinator for the coronavirus response, Andrew Slavitt, urging Amazon to ban books. 

Three conservatives — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — favor the Fifth Circuit Court of Appeals ruling at issue, which barred officials from contacting social media platforms. Justices Kagan and Kavanaugh, however, noted that they’d both pressured press outlets to correct erroneous stories.

“Some might say,” Justice Jackson said, “that the government actually has a duty to take steps to protect the citizens of this country.” She, Justice Amy Coney Barret, and others, seemed skeptical that the Biden Administration had gone outside the limits imposed by the Constitution to execute that mandate.

The Louisiana solicitor general, Benjamin Aguiñaga, Justice Jackson said, seemed “to be suggesting” that action to ensure public safety “cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.”

It would be the government that decides what’s “harmful.” Justice Kavanaugh gave the example of wartime. “It’s probably not uncommon,” he said, “for government officials to protest an upcoming story” on grounds that “it’s going to harm the war effort and put Americans at risk.”

The breakout quote of the day’s arguments came from Justice Jackson. “Your view,” she said to Mr. Aguiñaga, “has the First Amendment hamstringing the government in significant ways in the most important time periods.”

The purpose of the First Amendment — indeed, the Bill of Rights and the Constitution — is to “hamstring” government. However, it states, “Congress shall make no law … abridging” free speech. Since the Biden Administration took no legislative action, it bodes well for their chances.With the conclusion of oral arguments in Vullo and Murthy, the Supreme Court is again weighing government power against First Amendment rights. Their rulings, expected in June, will decide just how far Madison’s paper barrier can stretch before it tears.

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