Free Speech on Trial

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On Monday morning, Jay Bhattacharya was feeling optimistic. The Stanford professor of health research policy was in Washington, D.C., to listen to oral arguments in the Supreme Court in Murthy v. Missouri. He is one of the plaintiffs in the case looking at the Biden administration’s efforts to police speech relating to the pandemic and the 2020 election on social media. Last year, Jay’s side won in a lower court. (You can read his op-ed about that victory in The Free Press here.)

Thanks to his dissenting views on everything from lockdowns to masks, Jay was censored by Big Tech during the pandemic. The question for the justices is whether the government violated his First Amendment rights by urging social media platforms to take down certain posts Jay wrote. A lower court ruled that the Biden administration’s requests to remove content were coupled with threats of punishment through heavier regulation—and therefore amounted to unconstitutional coercion.

Jay expected things to go well in the Supreme Court. But, as he told me when we spoke on Tuesday, “some of the justices showed almost no regard whatsoever for the free speech rights of Americans.” For example, Justice Ketanji Brown Jackson said her “biggest concern” is that the case uses the First Amendment as a means of “hamstringing the government in significant ways.”

As Jay points out, “That’s the very purpose of the First Amendment: to restrict the government from violating basic speech rights.”

Brown Jackson, a liberal justice appointed by President Biden, was always going to be skeptical of Jay’s side of the case. But most Supreme Court reporters agreed that even the court’s swing votes weren’t swinging in a pro–First Amendment direction.

Jay said that after a day of legal argument he “left feeling deflated.” His lawyer, Jenin Younes, wasn’t so gloomy. “It went about as I predicted it would,” she said, sketching out what she saw to be the dynamics on the bench, with three sympathetic justices (Samuel Alito, Neil Gorsuch, and Clarence Thomas), three swing votes (Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts), and three skeptics (Sonia Sotomayor, Elena Kagan, and Brown Jackson).

The court will hand down its decision by June—and so Jay and his legal team have plenty of time to read the tea leaves.

Meanwhile, Murthy v. Missouri is only one in a series of First Amendment cases being heard by the Supreme Court this session. The others are:

The Netchoice cases, which deal with laws in Texas and Florida that limit the freedom of social media companies to moderate content on their platforms. The cases pit the free speech rights of those companies against the rights of their users.
A case concerning whether a New York official violated the National Rifle Association’s First Amendment rights when, after the 2018 Parkland shooting, she urged banks and insurance companies to stop working with the group.
A case looking at whether public officials can block you on social media. (This week, the court has already decided, unanimously, that they cannot.)

All these cases apply the First Amendment to the social media age, but the first two are most important. With Netchoice, the court will decide whether social media companies should be treated as publishers—or as a modern-day public utility. And with Jay’s case, the court will decide whether the powers of the counter-disinformation complex—through which so much modern censorship occurs—are legitimate, or if those powers need to be checked.

As for Jay, he is still working through the mixed emotions he felt in the courtroom on Monday. “As an immigrant to the United States, I had tingles when I walked into the court,” he said. “I never imagined I would be in the middle of something that, I think, will go down in American history.

“But also, I felt a lot of sadness,” he told me, because his work relies on the First Amendment. “As a scientist and a professor, the heart of my job is to speak. And I have to look over my shoulder and worry whether the government is going to censor my speech. That’s just shocking.”