The Government, Big Tech and Free Speech, Round Two
The Supreme Court is back on the First Amendment beat Monday when it hears cases asking whether government officials can jawbone businesses to restrict speech. It seems government needs remedial constitutional training. In Murthy v.
Missouri, states and individuals whose posts on Covid were censored sued federal officials for violating the First Amendment. Lower courts ruled for the plaintiffs based on copious evidence that government officials pressured social-media platforms to suppress their posts. Former White House director of digital strategy Rob Flaherty and Covid adviser Andy Slavitt flagged posts for removal to social-media employees and berated them if they didn’t follow orders.
Facebook is “hiding the ball" on its efforts to combat vaccine “borderline content," Mr. Flaherty wrote in one email. Mr.
Flaherty also blamed Facebook for the Jan. 6, 2021, riot and said it would be blamed for Covid deaths if it didn’t increase censorship. “I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse," Mr.
Flaherty wrote. Officials reinforced these private lashings with public threats. Former White House press secretary Jen Psaki said platforms could face “legal consequences" if they didn’t censor vaccine “misinformation." White House officials floated antitrust action and eliminating Section 230 liability protections.
The Justice Department claims this bullying is merely government speech protected by the First Amendment. “So long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views in strong terms," the Solicitor General writes. But Biden
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