During oral arguments in a case about social media censorship, Supreme Court Justice Ketanji Brown Jackson voiced concerns that the First Amendment restricts government too much, especially during important times like the COVID pandemic.
She questioned if the government should be able to pressure platforms to remove “harmful information” and worried the First Amendment operates in a way that hamstrings government action.
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Jackson said.
Jim Jordan Rips Ketanji Brown Jackson's Concern about the First Amendment: "Hamstringing the Government"@Jim_Jordan: "She said you've got the First Amendment 'hamstringing the government.' Well, that's what it's supposed to do, for goodness sake. It was literally one of the… pic.twitter.com/OhqA0vXKon
— KanekoaTheGreat (@KanekoaTheGreat) March 18, 2024
“You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So, can you help me?” she said. “Because I’m really worried about that because you’ve got the First Amendment operating in an environment of threatening circumstances, from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems.”
However, the Louisiana solicitor general responded that government can provide information to platforms but must comply with the First Amendment, and Rep. Jim Jordan criticized Jackson’s view, noting the First Amendment is meant to restrain government overreach and censorship of political speech.
“Our position is not that the government can’t interact with the platforms there. They can and they should in certain circumstances like that, that present such dangerous issues for society and especially young people. But the way they do that has to be in compliance with the First Amendment. And I think that means they can give them all the true information that the platform needs and ask to amplify that,” Louisiana Solicitor General Benjamin Aguiñaga said.
Jackson’s comments suggested she believes government should have more power over online speech during certain circumstances.
“She said you’ve got the First Amendment ‘hamstringing the government.’ Well, that’s what it’s supposed to do, for goodness sake. It was literally one of the craziest things I’ve ever seen, that you could have a Supreme Court Justice say that in the oral argument made no sense to me,” Jordan said.
“That is frightening because if she really believes that, that is scary where we are heading. Understand what took place here. This was censorship by surrogate. This was big government telling big tech to take down speech that they disagreed with, and it was the most fundamental kind of speech. It was political speech.”
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