“My greatest concern,” Supreme Court Justice Ketanji Brown Jackson said Monday, “is that your opinion sees the First Amendment as impeding the government in significant ways.”
This comment came during the oral hearing Murthy v. Missouri, the case asking whether President Joe Biden’s administration violated the First Amendment when it tried to pressure social media apps to remove information it deemed harmful. It didn’t take long for Jackson’s news to spark the viral narrative that she misses basic constitutional principles, particularly when you consider that the purpose of the First Amendment is precisely to thwart what the government can do in response to speeches that he may not like. .
“Jackson raises eyebrows by commenting that the First Amendment ‘stresses government,’” Fox News wrote. “The left wants unlimited government, and that’s why they hate the Constitution,” he complained The Federalist. It was “literally one of the craziest things I’ve ever seen,” said Rep. Jim Jordan (R-Ohio).
But like so many viral narratives, Jackson’s comments were quite benign in context, and were actually echoed by Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps most ironically, his observation fundamentally touched on the crux of the case: the government, of course, has no right to criminally punish someone for the vast majority of their speeches. But does he have the right? persuade?
Jackson might think so. His “outlandish” comments were attached to a hypothetical scenario he posed to Benjamin Aguiñaga, Louisiana’s attorney general, who argued that the Biden administration had overstepped its bounds when it reached out to social media platforms and attempted to pressure on them to remove posts he deemed objectionable. Suppose a challenge circulates on social media regarding “teenagers jumping from windows at increasing heights,” Jackson said. Could the government try to convince those platforms to remove that content?
No, Aguiñaga said, because that is still a protected word, no matter how dangerous it is.
That may well be the correct interpretation. But Jackson’s view – that such a vision might impose too many limits on government – is shared by many, including, apparently, some of his more conservative colleagues. Kavanaugh, for example, called on his experience working with government press secretaries, who regularly call journalists to criticize them and try to influence their coverage. Would it be illegal for the feds to prosecute those journalists for articles that cast them in a negative light? Absolutely. Is it unacceptable for the government to express what it believes to be true in seeking better coverage? Not necessarily, Kavanaugh said.
That doesn’t mean they’re right. But the great irony of Jackson’s viral accusation is that, based on oral arguments, his view may well prevail.
Jackson, of course, isn’t the first to find herself in this situation. At a recent rally in Ohio, former President Donald Trump said there would be a “bloodbath” if he lost. The comment sparked a media frenzy, although, once again, the comment, which appeared to refer to the auto industry, appeared much more benign in context. But if partisans have one thing in common, it’s confirmation bias. They often differ on which ideas they want to succeed, but they still want their side validated, sometimes at the expense of the truth.