Miss a day, miss a lot. Subscribe to The Defender's Top News of the Day. It's free.
I will be at the U.S. Supreme Court on Monday, March 18, to hear the oral arguments in Murthy v. Missouri (formerly Missouri v. Biden) and to rally with others on the front steps in support of our First Amendment rights.
As my colleagues and I wrote in Children’s Health Defense’s (CHD) friend-of-the-court brief, “the fate of the freedom of speech in America may actually depend on this case.”
As we outlined, two recent intertwined developments have led to this shocking reality: (1) the rise of the behemoth social media platforms, eclipsing legacy media as people’s go-to source of news; and (2) the concerted, secret, comprehensive effort of the federal government to censor protected speech, including “wholly accurate information and core political opinion critical of Administration policy.”
As Judge Terry A. Doughty concluded in a lower court ruling, this “arguably involves the most massive attack against free speech in United States’ history” — an attack in which the government censors dissent and dissenters by proxy, controlling what hundreds of millions of Americans and others around the world hear, see and say every day.
Fortunately, the lower courts concluded that the law is on the petitioners’ side — the government cannot do by proxy what the Constitution forbids it to do.
Guided by Norwood v. Harrison, which the Supreme Court decided in 1973, it is “axiomatic that [the] state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
As we wrote in our brief, “the Norwood axiom is indispensable to the preservation of every constitutional right.” A law enforcement officer can’t ask a passerby to perform an otherwise illegal stop-and-frisk action or search of a home. The government may not outsource illegal conduct.
The U.S. District Court for the Western District of Louisiana granted a preliminary injunction against the Biden administration to cease and desist its interventions to censor social media, and the 5th Circuit U.S. Court of Appeals upheld it.
This is a high bar: A preliminary injunction, before a full trial, is granted only when the plaintiffs have proven that they are likely to win at trial and that the continued activity may cause irreparable harm.
Although the lower courts granted the preliminary injunction to stop the Biden administration from censoring, the Supreme Court granted the administration a “stay” or a pause in enforcement pending the outcome of its own review.
Despite the majority’s decision to hear this case, resulting in the March 18 oral arguments, three justices — Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — dissented from that decision and wrote that the government’s application should be denied because a stay is an extraordinary remedy and because “the Government’s attempts to demonstrate irreparable harm do not come close to clearing this high bar.”
The justices concluded that the stay of the injunction allowed “the defendants to persist in committing the type of First Amendment violations that the lower courts identified.”
Justice Alito concluded, “At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.”
Justice Alito again voiced concerns when CHD tried to have the Kennedy v. Biden plaintiffs join the Missouri v. Biden plaintiffs at the Supreme Court as these two cases are closely related and consolidated in the District Court of Western Louisiana.
While the Supreme Court declined to allow the Kennedy plaintiffs to intervene, Justice Alito weighed what was at stake: that a candidate running for president of the United States might be actively censored by the rival incumbent candidate, undermining the core principle of democracy that elections are the people’s choice, not the government’s.
I look forward to being at the Supreme Court on Monday to celebrate our Constitution and to rally for free speech. The stakes could scarcely be higher.
The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Robert F. Kennedy Jr.’s views on the issues CHD and The Defender regularly cover. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy, who is on leave from CHD and is running as an independent for president of the U.S.
