The First Amendment: An Inconvenience to the Government

The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech. — Anthony Kennedy 

Modern liberals are supposed to be about liberty — protecting the rights of the people. Our newest justice on the SCOTUS bench must not have gotten the memo on that. She appears wanting as an arch defender of the First Amendment. 

Last month, the U.S. Supreme Court heard a Missouri case regarding (there’s no other way to say this) social media censorship. At issue is whether the federal government coerced social media companies into suppressing certain content and whether that would constitute an affront to free speech protections. (READ MORE from F. Andrew Wolf Jr.: Is ‘Man the Measure’? From Where Does Our Freedom Come?)

Supreme Court Associate Justice Ketanji Brown Jackson created a stir while hearing oral arguments to the case. It was her comments about the First Amendment “hamstringing” the power of the federal government that created the furor. In the landmark case, Murthy v. Missouri, what is at issue is the federal government’s influence over social media content. Justice Jackson, nominated by President Biden in 2022, is one of three ideologically more liberal justices on the court. 

During oral arguments, Justice Jackson expressed skepticism about limits being placed on the government’s freedom to censor Americans during times of emergency such as a “once-in-a-lifetime pandemic.” More on that in a moment. 

Unfortunately, several of the other eight justices seemed to share her skepticism that the Biden administration’s strong-arm tactics amounted to a violation of the Constitution. 

Addressing Benjamin Aguiñaga, Louisiana’s Solicitor General, the justice remarked, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.” 

But, Madam Justice, isn’t that essentially the point, here? The Bill of Rights exists precisely to “hamstring” government in all manner of ways: Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth Amendments. 

Justice Brown continued her questioning of Aguiñaga, “You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So, can you help me? Because I’m really worried about that because you’ve got the First Amendment operating in an environment of threatening circumstances, from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems.” 

Aguiñaga’s response was not novel. He asserted that although the government has in certain situations the right to intervene, it must remain within the limits of the First Amendment. At this point, the justice’s retort was predictable, saying it is “a compelling interest of the government to ensure, for example, that the public has accurate information in the context of a once-in-a-lifetime pandemic.” Essentially, Justice Jackson undermined Aguiñaga’s defense by framing the issue in terms of national security interest. 

Since the First Amendment was adopted in 1791, case law surrounding it has established exceptions to its protection (e.g. defamation, perjury, blackmail, violent threats, etc.). 

In addition, language or speech in other forms advocating action that presents a “clear and present danger,” especially in the context of national security or war, can also fall within the purview of federal censorship. But, categorizing COVID-19 in such terms, as the good justice did, is to engage in overreach — especially when one looks at the most recent information from that era. The following data is instructive with respect to the above concerns and comments by Justice Jackson. 

It has become apparent that the World Health Organization (WHO) was overzealous in its morbidity and mortality rate declarations. Although it stated that 3.4 percent of people who contracted COVID-19 died, subsequent data revealed otherwise. A meta review released January 2021 of more than 60 studies revealed that the median COVID-19 Infection Fatality Rate (IFR) was only 0.27 percent. When age and comorbidities were factored in, they were found to be significant risk factors for severe disease and death from COVID-19. 

Moreover, an analysis was published October 2022 that covered 38 countries, revealing an IFR of just 0.095 percent for both very young people and those of advanced age, prior to the administration of any vaccines. Another way to say this is that 94 percent of the global population had a 99.965 percent chance of surviving COVID-19. These recent revelations make one wonder what ulterior agenda might have been in play with COVID-19. (READ MORE: A Step in the Right Direction for Elon Musk’s Free Speech Agenda)

In her remarks Justice Jackson telegraphed to the court and its audience (the rest of us) her insufficient grasp of the facts (current studies, recent research, etc.) regarding the COVID pandemic. But the concern is more than that. The justice was categorical in her efforts to impeach Aguiñaga’s defense of free speech. She showed great concern that the government would be restrained by the Constitution from censoring Americans. The First Amendment reads: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The irony here is that such restraint is the entire purpose, the very essence, of the First Amendment, which in taking her oath of office, Justice Jackson is charged to defend “so help me God.” 

What is so troubling is that the First Amendment’s speech protections are pivotal to securing the balance of the protections promulgated under the Bill of Rights. Without the First Amendment it is difficult, if not impossible, to imagine how the other nine protections can be secured.

When governments restrict the speech its citizens are permitted to utter or hear, dissent occurs under duress and “truth” becomes manufactured consent. 

The dominant purpose of the First Amendment was to prohibit the widespread practice of government suppression of embarrassing information. — William O. Douglas

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