re: KBJ says First Amendment “hamstrings" government

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What happens when a lawless judge and a terrible appeals court embrace the dopiest First Amendment claim you’ve ever heard out of pure spite toward a Democratic president? That would be Murthy v. Missouri, a brain-meltingly dumb case that the Supreme Court was unfortunate enough to hear oral arguments in on Monday. Murthy poses a question so asinine that to ask it is to answer it: Can government officials encourage social media companies to moderate certain content that they deem harmful—most importantly, disinformation about COVID-19 in the middle of the pandemic?

Yes, of course they can: The First Amendment does not gag public officials from urging Facebook or the Washington Post or anyone else to publish or not publish certain information, especially when it contains dangerous lies about a once-in-a-century pandemic that could exacerbate the crisis. The First Amendment bars government censorship, not government persuasion, and the Biden administration planted itself on the latter side of that bright line. At least six justices grasped this basic constitutional principle on Monday. Several of them used arguments to highlight how this inane case illustrates so much of what’s wrong with the judiciary today, and hinted at the dangers it could pose to American democracy in the future. That we should pay attention to. The rest was an unfortunate sideshow.

Like so many Supreme Court cases these days, Murthy is built atop a heap of fake facts. The case began when Missouri and Louisiana sued agencies and officials across the Biden administration, falsely accusing them of coercing social media companies into censoring their residents’ free speech. (These states later added a handful of fringe anti-vaxxers to the suit.) They filed their complaint in the Monroe Division of the Western District of Louisiana, where—surprise!—they were guaranteed to draw a Trump appointee, Terry Doughty, the one judge hearing cases in that division. Judge Doughty has a record of issuing nationwide injunctions against the Biden administration on the basis of dubious legal and factual analysis. Most notably, he issued a nationwide bar against Biden’s vaccine mandate for health care workers in an opinion riddled with anti-vax nonsense (which the Supreme Court reversed).

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