Supreme Court Justice Kavanaugh loses patience with far-right judiciary

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There are several recent signs that the center-right of the federal judiciary is losing patience with its far right.

Last week, a policy-making body within the judiciary announced new measures to combat the “buying of judges” a practice that has allowed Republican litigants they choose to have their cases heard by partisan judges who are far to the right of even the average Trump appointee. He Supreme Court He has also heard of several cases during his current term in which it seems likely that overturn rulings handed down by the United States Court of Appeals for the Fifth Circuita MAGA bastion that frequently dictates decisions that seem designed to sabotage the biden administration.

On Monday, the Supreme Court held oral arguments in one of these Fifth Circuit cases, known as Murthy v. Missouriwhere the lower court issued a radical court order prohibiting much of the federal government from having any communication with social networks media companies. It seemed highly unlikely that a majority of the justices would uphold that injunction on Monday, and Judge Brett Kavanaugh repeatedly noted that the Fifth Circuit’s approach would impede more routine interactions between government officials and the media.

murthy was one of two cases heard by the justices on Monday involving so-called “jawboning”: cases in which the government attempted to pressure private companies into taking certain actions, without necessarily using its coercive power to do so. The other case, known as National Rifle Association Against Vullo, involves a pretty egregious violation of the First Amendment. Under Monday’s argument, up to nine justices can side with the NRA in that case. (You can read our coverage of the ANR case here.)

In other words, most justices seemed eager to resolve both cases without significantly altering their Court’s First Amendment doctrines and without disrupting the government’s ability to function. That’s good news for the NRA, but also good news for the Biden administration.

So what is the murthy case about?

The general rule in First Amendment cases is that the federal government cannot force a media company to change the content it publishes, but it can ask a platform or outlet to remove or alter its content. In fact, as Kavanaugh pointed out several times during oral argument, if the government were not allowed to do so, White House press advisers and the like would not be allowed to talk to journalists to try to shape their coverage.

In murthySeveral federal government officials had many communications with major social media platforms, where officials asked the platforms to remove certain content or provided them with information that convinced them to do so.

These communications refers to many topics. The FBI, for example, frequently contacts social media platforms to warn them about criminal or terrorist activities occurring online. The Cybersecurity and Infrastructure Security Agency (CISA) flags social media content for platforms that contains election-related disinformation, such as false statements about when the election will take place. The White House sometimes asks social media companies to remove accounts that falsely pose as a member of the president’s family.

Many of these communications also involved government requests for platforms to remove information containing false and harmful health information, including misinformation about COVID-19. And these communications were the center of attention during the murthy oral argument – the murthy The plaintiffs include several people who are upset because your content was removed because the platforms determined that it was Covid misinformation.

These plaintiffs were able to identify several examples where government officials were abrupt, bossy, or rude to representatives of social media companies when those companies refused to remove content that the government asked them to remove. It should be noted, however, neither these plaintiffs nor the Fifth Circuit identified a single example where a government official threatened some kind of consequence if a platform did not comply with the government’s requests.

Instead, the Fifth Circuit seemed to complain about the fact that the government has so many communications with social media companies. He claimed that the Biden administration violated the First Amendment because government officials “They became entangled in the platforms’ decision-making processes”, and ordered the government to stop having “consistent and consistent” communications with social media platforms.

It’s unclear what that decision means: Exactly how many times can the government talk to a social media company before it violates the Fifth Circuit’s order? – and at least six of the justices seemed frustrated by the Fifth Circuit’s clumsy approach to this case.

The two judges who have served in high-level positions in the White House seemed especially dismissive of the Fifth Circuit’s position.

Justices Elena Kagan and Kavanaugh seemed especially frustrated with the Fifth Circuit’s attempt to cut off communication between the government and the platforms, and for the same reason. Both Kagan and Kavanaugh worked in senior positions in the White House — Kagan as President Bill Clinton’s deputy domestic policy adviser and Kavanaugh as President George W. Bush’s staff secretary — and both pushed back at the suggestion that the White House can’t try. persuade the media to change what they publish.

In fact, Kavanaugh, a Republican appointee donald trumpHe even came to the government’s defense after Justice Samuel Alito attacked Biden administration officials who, Alito claimed, were too demanding of the platforms.

After Alito ranted about what he called “constant annoyance” from White House officials who sometimes “cursed” corporate officials or treated them as “subordinates,” Kavanaugh said that, in his experience, White House aides White House press officers often call members of the team. media and “reprimand” them if they don’t like the press coverage.

Similarly, Kagan admitted that “like Justice Kavanaugh, I have had experience encouraging people to suppress their own speech” after a journalist published a bad editorial or an article with a factual error. But these kinds of routine exchanges between White House officials and journalists are not a violation of the First Amendment unless there is some kind of threat or coercion. Why should the rule be different for social media companies?

So Benjamín Aguiñaga, the lawyer trying to defend the Fifth Circuit’s order, arrived in court this morning in front of an already skeptical court. And his disastrous response to a hypothetical Judge Ketanji Brown Jackson It only dug him deeper into a hole.

Jackson imagined a scenario in which several people online were daring teenagers to jump out of windows, and that there was actually an epidemic of teenagers seriously injuring themselves doing so. Could the government, she asked, encourage platforms to remove content that urges young people to fight back?

Aguiñaga’s answer was “no,” an answer that caused an incredulous Chief Justice John Roberts to reframe the question and ask Aguiñaga to answer it again. And yet the lawyer clung to his opinion that the government cannot encourage Twitter either Facebook to remove content that encourages people to jump out of windows.

Chances are, for what it’s worth, that at least two judges will disagree. Last October, the Court temporarily blocked access to the Fifth Circuit murthy decision While this case was being litigated before the justices, but it was done over the objections of three justices: Alito, plus Justices Clarence Thomas and Neil Gorsuch.

On Monday, Gorsuch asked some questions that suggested he might have reconsidered his previous position because he now believes the Fifth Circuit’s injunction is too broad, but Thomas and Alito seemed intent on backing their colleagues on the far right of the judiciary.

Thus, although it seems likely that an alliance between the center left and the center right of the Court will continue in the coming years, murthy In this case, that could change quickly if former President Donald Trump returns to office and manages to replace some of the current judges with members of the Fifth Circuit (or with other judges who share Thomas and Alito’s MAGA-infused approach to judging ).

But at least for the moment, most judges seem to recognize that the government needs to function. And that means the Fifth Circuit’s attempt to cut off communications between the Biden administration and the platforms is likely to fail.

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