Free speech in dock as US court ponders censorship reach

If the right to free speech diminishes in the US, it won’t last long in other liberal democracies.

This prospect is real after a hearing in the US Supreme Court last week, when the nine justices pondered whether to quash the federal government’s scope to put pressure on tech platforms to take down comments the government didn’t like. On behalf of their citizens and a handful of doctors and academics, Missouri and Louisiana had successfully sued the government in lower courts, arguing bureaucrats unconstitutionally had put pressure on tech platforms to censor criticism of pandemic lockdowns, masks, Covid-19 vaccines, election integrity and Hunter Biden’s laptop.

In his ruling, Louisiana Judge Terry Doughty called it “arguably the most massive attack against free speech in United States history”. A federal appeals court largely agreed, but the Biden administration, aware of the extraordinary implications, appealed it to the US Supreme Court.

“(We) cannot stress the degree to which this needs to be resolved immediately,” White House adviser Rob Flaherty told Twitter, now X, in February 2021, referring to a parody account mocking Joe Biden’s granddaughter.

When officials weren’t telling social media companies what to take down, they were laundering censorship through partnerships with universities, most prominently the Virality Project at Stanford. The justices’ line of questioning wasn’t reassuring for free-speech advocates.

“Before, I was fully confident that American courts were fully devoted to free speech; afterwards, I’m not so sure,” said Stanford professor Jay Bhattacharya, one of the plaintiffs, whose 2021 roundtable discussion with Florida Governor Ron DeSantis on damage caused by lockdowns was removed by YouTube.

Ketanji Brown Jackson, the US Supreme Court’s newest judge, said her “biggest concern is that your view has the first amendment hamstringing the government in significant ways”. As numerous legal scholars have pointed out, that is indeed the purpose of the first amendment of the US constitution – that congress, and by implication government, may not abridge free speech. There’s no exception for pandemics, safety, feelings or anything else.

Even some of the court’s conservative judges suggested the government’s actions were akin to the pressure political staffers routinely put on journalists to influence how they write stories.

Enthusiasm for free speech appears to be waning outside the court, too. The libertarian Cato Institute filed a brief that endorsed government meddling so long as it didn’t rise to “coercion”. That once venerable defender of free speech, the American Civil Liberties Union, which once defended the right of neo-Nazis to march through Skokie, Illinois, a Chicago suburb that was home to a large Jewish population, including thousands of Holocaust survivors, didn’t even bother to file a brief.

“If it stays on the persuasion side of the line – and all we’re talking about is government speech – then there’s no state action and there’s also no first amendment problem,” government lawyer Brian Fletcher said. He argued the government’s actions were akin to ministers using the “bully pulpit”, to influence public opinion.

What was occurring was systematic, clandestine, automatic removal of comments on social media, the sort of thing that occurs routinely on social media in China.

Journalists still can write what they want, but not so the thousands of individual citizens, most with far less power than mainstream media journalists, who in this case simply wanted to express their opinion in good faith.

The justices appeared to baulk at “coercion” of social media platforms, but perhaps not “significant encouragement”, a lower bar. But any instruction from the federal government has behind it the veiled threat of antitrust action or reform of section 230, part of US law that shields social media platforms from being sued over content their users post. These are hardly casual recommendations among friends.

Not that it should matter, given free speech entails the right to lie or be ignorant, but much of what was censored turned out to be true, whether it was the veracity of claims about Hunter Biden’s laptop or the potential for injury from “safe and effective” Covid-19 vac­cines. Indeed, last week The New York Times ran an article on the damage lockdowns and school closures caused to children’s development.And after a long legal battle, documents released in Germany last week, reported by London’s Daily Telegraph, showed public health experts there were privately aware lockdowns could cause more harm than good and that evidence masks would slow the Covid’s spread was non-existent.

Had individuals been able to criticise what in hindsight were misguided policies, without fear of censorship and opprobrium, damage could have been limited. Free speech is not only intrinsically desirable but also a critical tool to help scientists, bureaucrats and politicians reach the right answers.

If the Supreme Court decides in favour of the government when it hands down its decision in coming months, expect the growing censorship-industrial complex to flex its muscles further. In Australia, Britain, Canada and other liberal nations, new and pending legislation has strengthened governments’ hands for the next “crisis” that emerges. It’s as if authorities, humiliated for being so wrong throughout the pandemic, have doubled down on censorship rather than acknowledging fallibility.

For now, Elon Musk’s X, the largest social media platform for the exchange of ideas, remains a bulwark of free speech, regardless of what the court decides. But we can’t rely on one man, and one platform, to hold back the tide

https://www.theaustralian.com.au/world/free-speech-in-dock-as-us-court-ponders-censorship-reach/news-story/1753b075bdcbd4b259d130c8b2eb8ac7

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