Morning Wire - The Fight for Online Freedom: Murthy vs. Missouri | Sunday Extra

Episode Date: March 24, 2024

The Supreme Court heard arguments this week in Murthy vs. Missouri. The case centers around the federal government’s efforts to silence dissenting views by coercing social media platforms to cancel or remove certain posts and users. We speak to Carrie Severino, the president of the Judicial Crisis Network about the case. Get the facts first on Morning Wire. Learn more about your ad choices. Visit podcastchoices.com/adchoices

This week, the Supreme Court heard oral arguments in a case that could determine how much of a role the federal government can play in policing American speech online. The case, Murthy v. Missouri, centers on the constitutional questions posed by the government influencing or coercing social media platforms to suppress disfavored speech. In this episode, we talked to a legal expert about the potential landmark First Amendment case and which way the justices appear to be leaning. I'm Daily Wire, editor-in-chief John Bickley with Georgia Howe. It's Sunday, March 24th, and this is an extra edition of Morning Wire. Joining us now to discuss Murthy v. Missouri is Carrie Severino, president of the Judicial Crisis Network. Hey, Gary, so before we get into the oral arguments before the Supreme Court this week, let's first discuss the lower court's ruling. Judge Dowdy found that seven groups of Biden administration officials violated the First Amendment by pressuring the social media platform.

into censorship, remind us what exactly did Dowdy Rule? So originally, he said that the federal government had violated the First Amendment because they were encouraging content moderation by these social media platforms, and that made those platforms effectively state actors. So the government obviously wouldn't be able to say, well, we disagree with your views on, say, vaccines in this case, and we're not going to allow you to speak. The government couldn't do that.

And so the question is then at what point then, Is the government either using another entity as a state actor? They become effectively subject to the first because they are state actors, or at what point are they being coerced by the government, by these actions? And so Judge Dowdy said that they were coercing and significantly encouraging the content moderation by the various platforms. What stood out most to you from the case concerning the administration's actions? Well, you know, there are some really, it's amazing the disturbing kind of patterns you see here. One of the things that I found was most striking was the fact that you've got these companies sending basically updates to the administration, oh, hey, by the way, we block these people. We're doing this, this and this. You could kind of hear they're just trying to, please, please, we're good. It's kind of like the dog rolling over and showing its belly to the alpha dog. Like, don't hurt us. We've got, you know, we've got this all covered. We're doing what you want. And that was very disturbing to see this coordinated campaign. And that's what came out in that record, a huge record produced.

at the lower court. Now, we heard the Biden administration argue this week that it was merely using its bully pulpit and persuasion with these social media platforms. What do you make of that line of argument? Well, you know, it's funny because a lot of the stuff we're talking about, you know, we know the bully pulpit when the president's standing up there talking or his press secretary is giving it a speech. But what's happening here wasn't really they're listening to the president's press releases. What was happening here is huge amounts of back and forth emails behind the scenes. And I thought the attorneys for the challengers put it really well. He said, this isn't about the bully pulpit.

This is about a bully and the government really bullying these entities into going along with their view. Now, the argument on the other side was there is underlying all this unspoken threats of antitrust action or removal of Section 230 protections to these platforms. And to avoid that these companies generally seem to comply. Does that argument hold water? I think this is one of the places that the challengers are running into trouble with the court, because the court seemed to be looking for, you know, obviously every justice has a different perspective. But I think you had a majority of the justice is that wanted a much clearer, explicit threat by the government. And unfortunately, even with the volumes in this record,

you couldn't, you know, draw the lines as clearly, I think, is that majority the court is going to want. I think that could be one of the ways that this case is likely to be unsuccessful. Because you never have them saying, hey, if you, you, you don't do what we say, we're going to do X. We're going to, you know, change your section through 30 protections. We're going to institute this kind of investigation against you. We're going to do this, that, or the other thing. Of course they're not going to do that because they're not stupid. So I think this is a real challenge to figure out how can you show it without having that evidence laid out? Now, we did hear some skepticism from some of the conservative

justices on the court that citing with Missouri would possibly stop, for example, the B.I. flagging threats against public officials or posts that put troops in harm's way. Could the court potentially narrow the ruling, or is this a real stumbling block? I think that is one of the real things the court is grappling with. And the attorney arguing for the Brian Fletcher did a great job of he went through every president. No, is it the war on drugs? If it's smoking, if it's, you know, terrorism, all these different things that you can go, yeah, I do want the government to be able to, you know, stop people who are engaging in child porn and flag that. You want those things happening. And so the question, you know,

is how can the court distinguish some of these things? I think it's also challenging because this is such a different type of media than we've dealing with in the past. And Justice Alito addressed that a little. He said, you wouldn't be doing this to a traditional newspaper or something. But it's also unusual because normally if they're trying to convince a paper saying, hey, when you're talking about this, he gave this example, it's hurting the war effort. And this is not accurate the way you're describing, say, what our soldiers are doing or something. If you're talking to the paper, you're pretty much talking to the actual speaker. Obviously, there's different journalists involved, but you're talking to the speaker themselves and saying,

please don't say this. And then they can decide and weigh, you know, whether they think the government's concerns merit them curtailing their own speech. Here it's a little different. Here you've got people like Twitter or Facebook and the actual speakers are one step removed. So the government's trying to get the social media sites to limited. They don't have the same vested interest in defending, that speech. And they also aren't making the same calculations. If it's your speech and your issue, you can say, okay, yeah, I can see where saying this might encourage, you know, X, Y, Z negative

thing, you know, difficult for the war effort, or some people might take it to encourage drug use, or some people could take this information on, you know, how to make explosives and actually make explosives with it, all sorts of things that people can then make their individual might make their own judgment call on. But it's different when it's that third party in the middle, the middleman. And I think the argument that they're saying here is they have no incentive to stand up for that speech. They'd rather roll over to the government because they just want to make sure they don't get targeted by regulatory or other governmental action. What were your overall impressions of how the oral arguments went? You've said you believe

conservatives will probably lose this case. What makes you say that? Which way does the court seem to be leaning? Yeah. I mean, it's hard to tell because some of the justices aren't always clear exactly how they're going to rule. Justice Barra, for example, traditionally make strong questions on both sides. And she really did, I think in particular, just trying to clarify, what are you arguing? What are the actual outlines of the legal standard that you're advocating for? But I think another uphill battle here is the fact that there are several members of the court who themselves had worked in administrations before. So Chief Justice Roberts Justice, Kavanaugh and Kagan in particular, like, gosh, I remember doing this kind of thing. This is the kind of thing that happens all the time.

how could this be a problem? How can the government not be able to call people? And again, remember that with the era that they were doing it, it's more like you're calling a newspaper. No one had the opportunity to work in the government where you're calling Facebook and telling them to take something down. So it's a little bit of a different thing, but I think that's hard to have that first person experience with all of them feeling like the government needs to have a lot of levers of power. And then you had people even farther down, Justice Jackson kept on mulling over or how could you limit the government's power, particularly in something like a worldwide pandemic? And I think that was kind of chilling to listen to because she seemed very much like we want to give the government incredible amounts of leverage in that situation.

We've all seen that that can really backfire when the government starts cutting down on civil liberties or on free speech in that context. What would happen to free speech online if the court does side with the Biden administration here? Well, you know, the status quo ante this decision really is what was already happening. We saw all this evidence is that the administration, and in this case, it was the end of the Trump administration, the beginning of the Biden administration, really did have the opportunity to lean on these social media companies. And I think what will happen is that will continue. So we've seen a little bit of what that means. That means that there are situations in which these major players in the social media world can decide. what they decide is orthodoxy and tamped down on certain types of speech. We've also seen that there is

pushback, that there are people who then go outside those, hard to say traditional, because there's still relatively new entities, but outside the big name social media groups trying to find another way to bring their message to people. So, you know, all in all, the internet certainly has made it possible to get some of these alternate or heterodox opinions out there much stronger. than ever was possible before that. So even with this, which I do think is unfortunate that we're going to have the government still able to lean on those companies to do it,

I still think we probably actually have more ability to break outside, say, the legacy media than we did 20 years ago, say. But I think it's also a wake-up call to everyone of what's really going on. And, you know, the other good news is, despite the fact that I think this could be a decision that is not as protective of free speech

or allows more government interference with free speech than we like, knowing that at least one of these major entities, that is Twitter slash X, now is more committed to freedom of speech itself and not willing to be bullied by the government. I think that's a huge step forward and is going to make it harder for the government to create a complete lockdown on that information because the fact that there's an opportunity in at least one of the major platforms, in addition to, of course, all of the alternative platforms that have sprouted up in the wake of this type of coercion, I think that's really good news that somewhere the voices will be able to find a way so that you can't have this orthodoxy being imposed of with whatever the White House decides is the correct view of the day. Well, as someone working for the Daily Wire, we've experienced firsthand the current environment online, including the role of the State Department in particular, which is why we're suing them on this very issue.

Final question on Section 230. there have been a lot of arguments about whether or not it needs to be tweaked or thrown out altogether. Are there some fixes here that could make things a little clearer in terms of how social media platforms operate? Yeah, Section 230 is like the elephant in the room on so many of these cases. And it's going to be really interesting to see is Congress, boy, I don't have any optimism on them being able to get together on, even on an overwhelming issue people agree on, let alone on something that's as controversial as how to navigate. this challenging new world of internet regulation. So unfortunately, I think it's going to be hard to imagine any clear steps forward.

And I do think that ideally that would be something that Congress could address. But, you know, in this polarized world, I don't know how they're going to be able to do so in a way that's functional. Well, they're certainly not known for being able to agree on much of anything. Yeah. Carrie, thank you so much for coming on. All right. Have a good day.

That was Carrie Severino, president of the Judicial Crisis Network. and this has been an extra edition of Morning Wire.