In Part One, I explained how our nation’s founders rebelled against “tyranny” — the government’s lawless disregard of limits on its power. Having learned from that tyrannical usurpation, when our founders formed a new government for us, they adopted a Bill of Rights. It enshrined in the organic law of our society “unalienable rights” that limit the power of the government.
I then explained how a case currently pending before the United States Supreme Court will decide if actions by the government (to coerce social media platforms to suppress free speech by citizens) violates the First Amendment in the Bill of Rights.
The Supreme Court will answer that question before the end of June.
My concern, and the subject of this column, was a comment made during oral arguments on the case one of the Justices – Biden appointee Kitanji Brown Jackson.
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.”
Does Justice Jackson not understand that “hamstringing the government” is precisely the purpose of the Bill of Rights? Does she believe the government should not be “hamstrung” during “important time periods”?
If so, who decides what are “important time periods”? The government? Can the government (as Justice Jackson suggests) decide for itself when there is an “important time period” during which it can censor free speech?
The context of Jackson’s comment was in regard to her earlier questions about why the government should not have been able to prevent social media dissemination of information about the pandemic which contradicted the government’s “official” narratives… narratives we now know to have been either misleading, or outright wrong:
“Everything the government told us about COVID was wrong!”
“America’s COVID Response was based on lies…”
“Public health officials can restore some public trust by being clear about what they got wrong…”
“The COVID Experts got it all wrong…”
The evidence presented in the case before the Supreme Court proved that information which contradicted the government’s narrative was proclaimed (by the government) to be“dangerous misinformation” and was suppressed by social media, as a result of government pressure . Again, we now know much of the information the government deemed “dangerous” was, in fact, accurate.
So it seems Justice Jackson’s “biggest concern” is not the credibility of the government but that the First Amendment “hamstrings” the government from suppressing expressions on social media by citizens who question the “official” version of truth during “important time periods”.
Does that mean the government can mislead the public without challenge whenever it decides the circumstances are “important” ?
The obvious answer (and the one the founders who included freedom of speech in the Bill of Rights intended) is that “important times” are exactly when the government’s narrative should be challenged for its credibility.
After Justice Jackson’s comment got some media traction, I heard a talk show caller dismiss those of us concerned with the implications of her comment by misquoting Supreme Court Justice Oliver Wendell Holmes. The caller asserted Jackson’s concerns were consistent with Holmes alleged statement that the First Amendment does not protect the right “to yell fire in a crowded theater”.
The problem with that “quote” by the caller is that neither Holmes, nor any other Justice, ever said it. What Holmes did say was that the First Amendment does not protect the right “to falsely yell fire in a crowded theater”.
No one ever said you can’t yell “fire” if there is one!
During the pandemic the government was telling us about masks, vaccines, shutdowns and other “science” that many disagreed with, and who were censored by social media companies for expressing their disagreement — including the physicians who are Plaintiffs in the Murthy v Missouri lawsuit.
To use the Holmes theater analogy, those experts who disagreed with what we now know to be wrong official government narratives were censored for yelling fire when the theater was, in fact, burning. Protecting us from just that sort of government censorship is why the First Amendment guarantees the right to free speech. “Let facts be submitted …”
WWII was certainly an “important time”. Then, a President (using only his executive power) ordered the incarceration, in internment camps, of Japanese-American citizens. That administration didn’t consider itself “hamstrung” by the Constitution — and has since been condemned “in the court of history” as having “no place in law under the Constitution.”
— Students for Fair Admissions, Inc. v Harvard. 600 US 181, 207 (fn3) (2023)
Government “disregard of the laws” … which are meant to restrain its power defines lawless tyranny.
Disregard of “unalienable rights” doesn’t become lawful during what the government decides for itself are “important times”.
That would be a mockery of the Bill of Rights.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.