Many People are saying this is the most important case of a generation. Can the Government compel media to censor the free speech of Americans? The hot takes here on Substack were not very positive, from free speech advocates.
the Justices’ questions to the lawyers — especially the squishy center-right justices’ questions — stank of elite superiority and arrogant paternalism. Being themselves a part of government, the Justices seem to think that “government knows best,” especially in emergencies - Childers
I listened to the oral arguments this morning while I worked on infrastructure for starting my garden vegetables. It was good to listen to it while I did something useful.
Brian H Fletcher, Principal Deputy Solicitor General, Dept of Justice, was as you might expect quite disingenuous. As with the redefining of the definition of vaccine to include gene manipulation, characterizing government coercing social media executives, cursing them out, threatening them, accusing them of murder, in private, as the use of the “bully pulpit” is just the sort of rewriting of reality in a pathological way one has come to expect from liberals generally, this Dept of Justice and the Biden Administration. The bully pulpit is a president addressing the people directly, trying to convince them, not coerce them, to follow a particular path. Fletcher reduced everything to the context of a “once in a lifetime pandemic,” when this case is about so much more than that. All and all his mischaracterization of misinformation and government censorship was precisely what one might expect.
I did think though, the justices were, if not critical, a bit dubious about his argument, if the conservative justices were careful not to state where they really stand on the issue. Several of them were careful to assure that they agree with the official story about covid, but that is not really the point of this case. I was surprised, based on the hot takes, there was more push-back against Fletcher than I imagined.
It got interesting when J. Benjamin Aguinaga, Solicitor General, Baton Rouge, Louisiana began his argument on behalf of the plaintiffs. Both Justices Elena Kagan and Ketanji Brown Jackson effectively ambushed him right from the start. It was absolutely clear from the beginning, both Justices are openly and transparently hostile to First Amendment speech protections. Justice Jackson interrupted him at least a half dozen times, to ply him with hypotheticals that had nothing really to do with the case. Kagan was practically apoplectic. As liberals these days will often do, at least twice she questioned not his reasoning but his competence and character. She insinuated repeatedly that he was confused. Probably the first ten minutes of his argument, they did half the talking. I think Justice Soto-Mayor only spoke once, but that was enough to hear the near-sneer in her voice about free-speech doctrine.
After that Aguinaga was clearly bamboozled, unable to gain traction in his argument. That said, I thought he did a shit job overall. Not once at any time the entire oral argument, from any character, did the idea that government might be wrong about the facts come up. A fundamental point about this case is, one of the reasons government should not have the right to censor is, how very wrong the government can be about the facts. Practically everything they censored about Covid turned out to be true. Everything they said about the Hunter Biden laptop was patently false, outright lies. That seems to be a fundamental point about censorship, why it is so very unconstitutional, but Aguinaga never mentioned it. Nor did he make a very convincing argument, rather constantly conceding this and that point, apologizing for this or that, not really being forceful about anything. That was very disappointing. I had expected a lot better than that, this being such an important case built up for so long.
The conservative justices were mostly silent. Part of that was, Jackson and Kagan wouldn’t shut up. That was interpreted by a few as them all being not well informed about how extensive the industrial censorship complex has become, not being sufficiently protective of free speech or sufficiently constraining of government. But it might be they are already largely decided, that there was massive over-reach, and were content to let Kagan and Jackson act badly.
I’m a lot less distressed than I was, after reading the hot takes, not having listened to the oral arguments. I would not be surprised to see a 6-3 decision in favor of the plaintiffs. I’m glad I listened to it. Here is the link:
All that said, I have a significantly lower opinion of Justices Kagan and Jackson, after this. I did not think highly of them before, but wow, Kagan was a mess, a real authoritarian, reflexively supportive of government speech before the citizen. More activist than judge, at least in this case. Ketanji Brown Jackson, the most recent Justice added to the bench, is indeed an exemplar of everything that is wrong with DEI. She was not just chosen because she is a black person with a vagina, she is simply not that bright relative to the job, and yet a reliable supporter of whatever the liberal cause of the moment is. Precisely the sort of person I have come to expect put on a pedestal by this Administration, by institutions of late public and private. One of the reasons why hardly anything seems to work well anymore. Which in this one case, is a permanent state of affairs.
Another case (literal, this time) in point that the government is nothing but a thugocracy. "Justice" is a commodity sold to the highest bidder. We cannot trust the system, except for it to perpetrate harm, or at the very least to set the stage for harm. And IT IS A STAGE.