Legal Docket: Deciding between persuasion and coercion

NICK EICHER, HOST: It’s The World and Everything in It for this 25th day of March, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

The main event today is the oral argument on one of the biggest cases to come along in awhile … involving how much leeway the constitution gives the government to police so-called misinformation.

EICHER: But first, we want to let you know about two opinions the court handed down last week.

First, FBI versus Fikre. A unanimous court sided with an American citizen who sued after the government put him on the no-fly list. It was while he was on an overseas trip that the government placed him on the list … and then offered to remove him, but only if he agreed to become a government informant.

REICHARD: He refused, and wound up stranded because the no-fly list operated exactly as you’d expect it to: he couldn’t get a commercial flight back to the U.S.

So he sued the government and alleged that it violated his right to due process.

EICHER: When he sued, though, the government took him off the list and then made the argument that the case was moot.

And that was the question: is the case moot?

All nine justices said no. The man may now proceed with his case in lower court.

REICHARD: Next opinion is in the case, Wilkinson versus Garland. It’s a win for a man from Trinidad who overstayed his tourist visa and was later arrested for dealing in crack cocaine. The arrest triggered deportation proceedings, but he argued the life of his disabled son qualified him for a hardship exception.

EICHER: The legal question was whether federal courts have authority to review an immigration judge’s decision about hardship exceptions.

By a vote of 6 to 3, the high court said federal courts can review them. So: case remanded for further consideration … meaning not that he automatically gets a hardship exception, but that a federal court can weigh in on whether the immigration judge ruled correctly in denying him one.

REICHARD: Alright, now for the big case last week: Murthy versus Missouri.

The dispute concerns efforts by the Biden Administration to pressure social media companies. Specifically, the White House had deemed certain posts misinformation primarily about COVID-19 and the 2020 election. And it wanted the platforms to remove them. Which they did.

The legal question is whether the government’s influence over the platforms transforms the platforms into state actors. If it does, then First Amendment protections kick in.

EICHER: Two states and five individuals sued named members of the Biden Administration.

One of those individuals whose voice was flagged, downgraded, removed, or deplatformed is Jay Bhattacharya. He’s a medical doctor, a PhD economist, and has been a professor for more than twenty years at the Stanford University medical school.

Dr. Bhattacharya co-authored an open letter called the Great Barrington Declaration. He and his co-authors published it in October 2020 in response to the way the government was handling the pandemic.

REICHARD: So I called him up.

JAY BHATTACHARYA: What we argued there was that the lockdowns were a tremendously damaging thing to the poor, to the vulnerable, to working-class people. It wasn't working to protect old people who were really at highest risk of dying if they got COVID. And so we called for focused protection of vulnerable older people and lifting lockdowns.

That led to Francis Collins, the head of the NIH, essentially calling for a devastating take down of us. He wrote an email which we saw via FOIA to Tony Fauci. And just sort of a hate campaign. I mean, I was subject to death threats…. And then when the vaccines came out, the argument that we made was that it made sense for the vaccines for older people, but the benefit/ harm analysis didn't make sense for younger people. And that idea especially got censored.

Also disfavored by the government was talk about the efficacy of the COVID shots and mask mandates, the origin of the virus, and evidence of vaccine injuries, particularly among young men.

Here’s Facebook CEO Mark Zuckerberg on the Lex Fridman podcast in June last year:

MARK ZUCKERBERG: And unfortunately I think a lot of the kind of establishment on that, you know, kind of waffled on a bunch of facts and asked for a bunch of things to be censored that in retrospect ended up being, you know, more debatable or true.

EICHER: Dr. Bhattacharya homed in on a point that really wasn’t debatable:

BHATTACHARYA: The idea that there was a consensus in favor of lockdowns itself was a lie. What we were saying was to anyone with any social-science background and real medical background could see what was true. But the information infrastructure that included this sort of censorship complex made it impossible to get the message out.

Now, back to the court proceedings.

Arguing on behalf of Dr. Bhattacharya and the others was Louisiana state Solicitor General Benjamin Aguinaga:

BENJAMIN AGUINAGA: As the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The district court, which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise… . Behind closed doors, the government badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned, it ominously says that the White House is considering its options …Under this onslaught, the platforms routinely cave.

REICHARD: They did cave … even though just last month in two other disputes before the Supreme Court, the social media platforms said they create their own content moderation policies.

Yet here, Aguinaga argued, unrelenting government pressure caused them to change those policies.

Call it persuasion or call it coercion, he argued it amounts to the same thing.

AGUINAGA: The government has no right to persuade platforms to violate Americans' constitutional rights, and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That's just being a bully.

EICHER: On the other side defending the government’s actions, Deputy Solicitor General Brian Fletcher:

BRIAN FLETCHER: The government may not use coercive threats to suppress speech, but it is entitled to speak for itself by informing, persuading, or criticizing private speakers … this case should be about that fundamental distinction between persuasion and coercion. But, … this is not a typical suit where a speaker challenges government actions affecting its own speech. Instead, two states and five individuals are trying to use the Article III courts to audit all of the executive branch's communications with and about social-media platforms. That problem has infected every step of this case.

But as Justice Samuel Alito seemed to see it, it was the government’s coercive language and actions that infected every step of the case.

You’ll hear Justice Alito point to Section 230; that’s the law that protects social-media companies from liability for what others say on their platforms.

Listen to this exchange with government lawyer Fletcher:

JUSTICE ALITO: Mr. Fletcher, when I read all of the emails exchanged …I see that the White House and federal officials are repeatedly saying that Facebook and the federal government should be partners, we're on the same team, officials are demanding answers, I want an answer, I want it right away, when they're unhappy, they curse them out…. constant pestering of Facebook and some of the other platforms and they want to have regular meetings, and …-- they suggest rules that should be applied and why don't you tell us everything that you're going to do so we can help you and we can look it over. And I thought: Wow, I cannot imagine federal officials taking that approach to the print media... If you did that to -- to them, what do you think the reaction would be? And so I thought: You know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and its uh, to mix my metaphors, and it's got these big clubs available to it. And so it's treating Facebook and these platforms like their subordinates. Would you do that to The New York Times or The Wall Street Journal or the Associated Press or newspaper or wire service?

FLETCHER: So there's a lot packed in there…

And so Fletcher proceeded to unpack. He argued context matters, and this was during a once-in-a-lifetime pandemic. So extraordinary times, extraordinary measures.

Justice Alito countered that the government didn’t behave that way with the print, broadcast, and cable media, maybe implying that they’re already largely in line.

But still, inconsistency is a very bad look.

REICHARD: Liberal Justice Ketanji Brown Jackson had a different concern. Here she addresses Aguinaga, lawyer for Dr. Bhattacharya and the others:

JUSTICE JACKSON: So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods … . And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.

REICHARD: Ample constitutional history indicates the very point of the free-speech, free-press clauses of the First Amendment is to “hamstring” the government. And in so doing: to protect citizens from government violating their rights.

Dr. Bhattacharya was sitting in the courtroom listening to this.

BHATTACHARYA: I found that very distressing … . The No. 1 source of misinformation during the pandemic was the government. They spread misinformation about the lack of immunity after COVID recovery, whether everyone was equally at risk from dying if they got the disease … . The harms of lockdowns, the wisdom of school closures, item after item after item, it was the government that was misinforming … . And yet the premise of the oral arguments seemed to be that the government sort of got everything right and they needed this tool of censorship in order to suppress misinformation.

But his distress, of course, did not resonate with the government’s lawyer. Here’s Fletcher again with Justice Clarence Thomas later questioning him:

FLETCHER: That's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly. So, for example, you know, recently, after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus. …and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop, and the platforms are—

JUSTICE THOMAS: So you—you really don't see any difference between the government coordinating with the platforms to exclude other speech and persuading the platforms to … not engage or permit other speech?

FLETCHER: I—I guess I'm not seeing it.

EICHER: Whether the justices see it, others do based on first-hand experience beyond U.S. borders.

Two weeks ago, the House Judiciary Select Subcommittee on the Weaponization of the Federal Government, held a hearing. Canadian psychologist Jordan Peterson delivered a warning:

JORDAN PETERSON: Well, I know that my colleagues on the psychological front and on the medical front in Canada are increasingly frightened of making any of their political opinions known in any form whatsoever, because governmental agencies, usually of the mid level, bureaucratic sort have been empowered as a consequence of our lack of First Amendment rights to intervene as they see fit in relationship to stated opinion, political or otherwise. And it's not good.

REICHARD: Canada has so-called charter rights … that are not nearly as robust as the First Amendment in the U.S. And men of science like Dr. Bhattacharya hope the Supreme Court remembers it:

BHATTACHARYA: I mean, I wish I could go back to being a quiet scientist. Before the pandemic, I never wrote an op ed … I really love being a scientist, but I don't see how you can do science if you don't have free speech. You actually need to make a public case for the scientific ideas you have so that there stands a chance against a whole host of people who just don't want to believe the data that you have.

And that’s this week’s Legal Docket.

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