“Lawless does not mean the complete absence of any law and customs. It means the habitual disregard of the laws by the government and especially of those laws which are meant to restrain the power of government…”
— Strauss & Cropsey, History of Political Philosophy (3d Ed) – Univ of Chicago Press, pg 76
“Tyranny” is rule by the “lawless”.
The men who declared our independence from England, did so because the royal government was depriving American colonists of their rights.
“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”
Their “Declaration of Independence” went on to describe the rights being violated.
“To prove this, let Facts be submitted to a candid world.”
Letting people see the facts, to judge for themselves, is a founding principle of our society.
Following the successful revolution, and the failure of their first attempt at self-government (the Articles of Confederation), the men who had fomented revolution against tyranny created a new form of limited central government “in Order to … secure the Blessings of Liberty to ourselves and our Posterity…”
Securing the “Blessings of Liberty” is the reason government exists “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, … That to secure these rights, Governments are instituted among Men…”
“Unalienable Rights” are “endowed” by the “Creator”; they are not “granted” by government at its discretion — nor can they be taken away when the government deems it convenient to do so.
“Unalienable” means “not capable of being taken away or denied.”
The document creating the government (replacing the Articles of Confederation) was the United States Constitution. But before the new government the Constitution created could actually come into existence it had to be accepted — ratified — by “We the People” through the existing State governments.
In order to get “the People” to ratify the new government it was necessary for its supporters to agree that the first Congress would consider amending the Constitution to expressly recognize the “unalienable Rights” of “the People” against “usurpations” by the new government. Those additional protections were embodied in the first ten amendments to the Constitution, known as the Bill of Rights, proposed by the first Congress.
Among the first of those “unalienable Rights” enshrined in the Bill of Rights is that of “free speech”. The First Amendment says, “Congress shall make no law … abridging the freedom of speech”. The United States Supreme Court long ago held “that speakers are protected against all government agencies and officials”, not just Congress.
With that fundamental premise upon which our federal government was “instituted among men” in mind, consider what was said during the March 18 Oral Argument before the United States Supreme Court in the case of Murthy v Missouri. The transcript of the oral argument is here.
Before going further, it’s useful to understand how the case came to the Supreme Court. The State of Missouri (and other parties, including some physicians) — the Plaintiffs — sued various officials in the administration of President Joe Biden — the Defendants — for violation of the First Amendment. That suit is being heard in a federal District Court in Missouri — the ‘trial court’ — and is still pending.
The trial court entered a ‘preliminary injunction’ against some of the Defendants, ordering them to stop violating the Plaintiffs’ First Amendment rights. The Defendants appealed that injunction to the federal Fifth Circuit Court of Appeals . That appeals court affirmed the trial court injunction against the United States Surgeon General (Murthy) and other members of the Biden administration.
The appeals court did so because it agreed with the trial court “that several officials — namely the White House, the Surgeon General, the CDC, the FBI, and CISA —likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.”
Murthy, and the other administration officials, appealed the decision of the Fifth Circuit to the Supreme Court. The question to be decided by the Supreme Court is:
“Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights.”
When hearing an appeal, the Supreme Court does not decide the facts of a case, but must base its decision on the factual findings made by the lower court which heard the evidence. So the Supreme Court is bound by the facts, as stated in the opinion of the Fifth Circuit, which agreed with the facts found by the trial court, as follows:.
“the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
— Missouri v Biden 83 F4th 350, 381-2 (5th Cir, 2023)
The proven facts were re-stated during the oral argument before the Supreme Court. “….the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans.”
That factual finding was characterized during the oral argument as “arguably the most massive attack against free speech in American history.”
We will learn, likely before the summer, how the Supreme Court will decide this case. I’m not going to try to predict their decision.
My concern — and one that should interest all who value the right to free speech — was the attitude reflected in an observations made during the oral argument by the newest Justice on the Supreme Court. That Justice was appointed by Biden, and she is “concerned” that the First Amendment could “hamstring” the government’s pressure on social media companies to censor free speech.
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.