Editor’s Note: This article is also available in video format as Episode #78 Of The Legalese Podcast
“My biggest concern, is that your view has the First Amendment hamstringing the government in significant ways.”
Earlier this week, during the oral arguments in the jawboning case Murthy v Missouri, Justice Ketanji Brown Jackson would utter one simple line:
"My biggest concern, is that your view has the First Amendment hamstringing the government in significant ways"1
That would cause the entirety of the American conservative movement to lose their collective minds and shit a metaphysical brick online.
With a collective gasp, they would share in a unique moment of transcendental outrage over this one statement, completely removed from all context beyond the 17 words that made up that partial sentence, that apparently proved, definitively, once and for all that the left was a monolithic institution built upon a foundation of pure hatred for the first amendment— and that this Supreme Court Justice outed herself as having precisely the same understanding of the meaning of the Constitution as a learning disabled prokaryote.
Congressman Jim Jordan, a Representative from Ohio seemed to act as what I can only describe as the admittedly contradictory thought leader of this conservative hivemind. The first statement I could find responding to Justice’s Jackson’s comment, from someone who believed this out-of-context partial sentence could be extrapolated to such a degree that it’s an indictment that every single leftist hates the first amendment was the following tweet by Jim Jordan.
And don’t let the fact that the video he is recommending in his retweet comes from a segment on SystemUpdate, a show hosted by the incorrigibly leftist-progressive journalist Glenn Greenwald lead you to believe that Jim Jordon doesn’t understand what he is talking about. So what if he disproves his own theory that liberals and progressives have a monolithic disdain for the first amendment by simultaneously praising a leftist’s advocacy for robust first amendment protections and free speech absolutism…
What you need to understand is that the problem with the criticisms by the Jim Jordans and his ilk against Justice Jackson is that they are factually inaccurate characterizations of what she actually said. This article is not a defense of her opinions about the first amendment. It is meant to prove her comment was in no way an expression of her opinion of the first amendment. This becomes clear if you merely listen to her full discussion in context, rather than the context-devoid sound-byte that has been circulating. Or even more pervasively, the article headlines that further chop up her words and reconstrue them in a way that is even more inaccurate than the selectively edited, out of context soundbite that’s clipped to make her look bad through a mix of dishonesty, bias and ignorance.
She is making an argument about the nature of First Amendment jurisprudence and the court precedent that shapes how they have interpreted the First Amendment over time— and the legal doctrines and tests that they have come up with over the years to distinguish between what is constitutional or unconstitutional for purposes of interpretation and construction.
Lets start by looking at how this debate has been presented in the news and across social media platforms, then we can work back from there.
That is the extent of the context that conservatives think is required to make the sorts of scathing indictments about why Justice Jackson hates the First Amendment and doesn’t understand the Constitution is, in actuality, a scathing indictment of the shockingly desperate confirmation bias that has gripped Republicans.
While Jim Jordan’s assertion that hamstringing government action was the purpose of the First Amendment is certainly true, the profundity of this statement is severely diminished by the fact that Jordan and so many of his closest allies in government, from Senator Josh Hawley, to Marjorie Taylor Greene, Matt Gaetz, Ted Cruz and Governors Greg Abbot and Ron DeSantis seem to believe Freedom of Speech isn’t so much a fundamental constitutional principle, as much as it is a cudgel to be wielded against people who disagree with them. Because they have no qualms whatsoever about using the coercive power of the government against the social media companies to blatantly and openly violate their free speech rights when it benefits them. Including their push to compel social media companies to host speech on their platforms if it is expressing a conservative viewpoint. Seemingly unaware the Bill of Rights is meant to hamstring all government coercion in the realm of speech and expression, where censorship and compulsion are two sides of the same coin.
I am, of course, referring to Texas H.B. 20 and Florida’s S.B. 7072. These are the pair of laws at the center of the Netchoice cases we have been following here on Legalese as part of my Supreme Court Roundup. Which compel these companies to host all kinds of speech on their platform that these private businesses would otherwise choose not to host, as is their right.
But I digress…
Returning to the matter at hand, if it was in fact true that the meaning of Justice Jackson’s “hamstringing” comment had been the broad and sweeping assertion that she believed the government should have the right to censor anything it wants, whenever it wants— and that the First Amendment is a pesky road block, unnecessarily blocking big government from telling big tech to take down speech that they disagreed with; including what he considers the most fundamental kind of speech (political speech.) That would indeed have been a frightening statement— and a clear signal that the future does not auger well for the continued existence of individual liberty in the country.
I assure you, if Jim Jordan’s representation of the meaning behind Justice Jackson’s words were remotely fair and accurate, I would be the first one getting out there and calling on every one to grab their pitchforks as I led the charge, effigy in hand, to emphatically and unambiguously express our deep displeasure at such a constitutionally repugnant view of the scope of first amendment protections against government censorship.
Of course Fox News claimed that what Justice Jackson is saying is that she doesn’t like the fact that the first amendment makes it difficult for the government to censor people. Here too, if this is what she had actually said That would be a horrific thing to hear a Supreme Court Justice say. Fortunately, as I said. Its not even close to the truth.
However, what has me so hot and bothered about all this is not that conservatives are getting this wrong. Being wrong is a human condition and a forgivable error. Its because what conservatives are doing here is attempting to dishonestly and unfairly impugn and delegitimize the Supreme Court in the eyes of the American people… The very same way the left is trying to do that when they talk about the present makeup of the Supreme Court being an ‘extremist court of far-right ideologues’ who are so corrupt and so dangerous we need to make the court a political body by packing the Court.
And of course once Fox News gave their official take we saw all the other conservative sites come out of the woodwork parroting identical headlines.
The Federalist ran a headline saying that Jackson is complaining that the first amendment is hamstringing the government’s efforts to censor people. Again, if this was what she actually said I would be enraged too. Fortunately whoever wrote this article is an idiot as well. Same with the The Washington Examiner.
So if she isn’t saying what everybody claims she said, what is she saying? I hear you asking. Well. To start with, why don’t we actually take the time to listen to this full exchange between Justice Jackson and attorney Benjamin Aguinaga, who is the attorney general of Missouri and was there representing the respondents in this case.
The fact is that all Justice Jackson was actually saying was that the government, of course, DOESN’T have the right to punish people criminally for engaging in the vast majority of all speech, but she was asking Mr. Aguinaga to what limit may the government have the right to persuade people without crossing the first amendment threshold. Which really is the central question of this entire case.
Anyone who only provides you the one sentence soundbite from Jackson— either did that because he hasn’t watched anything beyond that, or they did listen to it in context and chose to intentionally misrepresent Justice Jackson’s statement… Either way, someone who presents you with that kind of information, whether out of ignorance or malice is someone who you should not trust. When it comes to Jim Jordan specifically, there is no conclusion that can be drawn from his many comments expressing his supposed outrage with Justice Jackson except to say that he either didn’t bother to listen long enough to understand what she actually said, or he did and he chose to willfully lie to the hundreds of thousands of people who first picked up on this from his tweet.
My guess would be it’s the latter. Jordan is very invested in this case, I can’t imagine he wasn’t paying careful enough attention to understand he was engaging in willful and malicious slander. I can’t know the man’s precise motives or read his mind, so I can only speculate on whether this was ignorance or malice on his part. But it can only be one of those two options and both should be roundly condemned.
Its not as though it takes any great feat of concentration to continue listening to that exchange long enough to understand that the soundbite is truncated to such a degree that people have no choice but to read it in the context the person posting the clip has to provide.
That may be a bit confusing, so to help explain what I mean, take another look at the pair of headlines from the Federalist and the Washington Examiner
They both paraphrase her sentence using the word “censorship”. But the word censorship isn’t in the truncated quote that they are paraphrasing. In fact the word “censorship” isn’t even implied when you look at her quote verbatim. What’s more, had they included the sentence immediately before or immediately after the sentence they are relying on for their “quote”— both the preceding and proceeding sentences explicitly use the word “persuasion”, which directly contradicts their implied context that she is speaking about “censorship”.
The only way that the corporate media and the conservative politicians who are attacking her for what she said could use her own words against her, to make her look bad, required they take a single statement that, when read verbatim, is actually saying something entirely reasonable and benign.
They proceed to take the basic structure of her sentence, and replace the one actionable verb that is used (“persuasion”) with their own actionable verb (”censor”). Only after they altered her statement on that molecular level, by replacing her own word choice with another that has a completely contradictory (and nearly diametrically opposed) meaning could they then construct a narrative like the one that went viral.
But they didn’t just excise inconvenient words. They also excised an incredibly inconvenient term that she uses— “Hypothetical”
I mean, what would --what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done.
Right there, she very clearly states that she is not making a general statement on the first amendment or on censorship, writ large. She was further clarifying a completely hypothetical question she posed earlier. So to understand her hamstring comment, its absolutely essential we hear and understand the hypothetical question she is speaking to.
Her hypothetical is clearly contemplating persuasion only, not coercion. She could not be clearer about that. She asks, could the government try to persuade people not to do this hypothetical challenge? Then she asks could they not persuade the social media companies to remove information promoting this challenge, due to the harm it is causing.
Now you are free to agree or disagree with her about the propriety of the government trying to persuade platforms to remove that content. As the attorney general said “No, that’s still protected speech even if its dangerous.” And that view, offered by the attorney general about the government’s ability to persuade social media companies to remove such content may very well be the correct interpretation. But all she is doing here is asking a hypothetical question so she can better understand the argument the attorney general is making about when he believes even voluntary persuasion crosses the line into potential first amendment violations. And it is still this hypothetical question that she is discussing with the Attorney General during the all-important “hamstringing” comment she makes.
It seems to me, that the larger exchange that contains the clip that went viral appears to be a judge asking precisely the kind of question a judge should be asking in a case where the parties to the case are asking the court to decide whether actual communications between the government and social media, in which the government “strongly encouraged” social media companies to remove content they deemed to be harmful was, or was not, a permissible form of government speech.
Justice Jackson’s comment here has to be just about the most benign and most appropriate question a judge could possibly ask in a case like this if they are trying to reach a fair determination on the merits.
Lets revisit that entire exchange, presented chronologically, so we can all hear this discussion play out precisely the way someone who had been following the entire session of oral arguments would have heard and understood that exchange.
As you can see, while Justice Jackson and the conservative attorney general from Missouri never reach a full agreement about exactly when and how the government can encourage or coerce or even potentially censor speech, they both agree that they are limited circumstances in which the government is able to do that— and this is the importance of Strict Scrutiny. That when the government wants to take an action they would normally not otherwise be able to do, they must go to the Courts and present proof that the action they are taking is one that serves a compelling, constitutional government interest. Such as national security. Then they must demonstrate that this restriction is narrowly tailored so that it only infringes what is necessary to exercise that compelling interest. While Jackson and the attorney general don’t entirely agree on the contours of where that would apply, the attorney general fully recognizes the validity of applying strict scrutiny and he even agrees with some of the examples of acceptable censorship that would be allowed under strict scrutiny. Like reaching out to a social media company about leaked government documents that jeopardize national security.
Let me give you all one example of where I think we could all agree that the government would be justified in restricting speech using a strict scrutiny standard.
This is how the government can, for example take action on terroristic threats.
Let’s say someone makes some kind of threat that they are going to plant a bomb at the Superbowl. If the government establishes that what is being said is a credible threat, whether or not a bomb is actually successfully planted and detonated, simply stating that can have incredibly harmful consequences. That guy can’t go into court and say:
“This trial is a violation of my free speech rights. It’s not my fault they cancelled the football game, or that I caused a crowd of hundreds of thousands of people to enter into a state of panic and disorder that got many people hurt and cost an untold dollar amount in damages to persons and property. Its not my fault my free speech cost the teams millions of dollars in lost revenue. Furthermore, its irrelevant that various offices of local, state and federal government officials had to expend millions of dollars to cover the cost of the time, men and equipment that law enforcement required to restore order and to investigate this crime. All I did was engage in my constitutionally protected right to speak.”
Does anyone believe that you have a free speech right to make a threat that will throw an entire city into panic and hysteria and cost the government millions of dollars to simply restore order and to try and safeguard people from this threat? The government has a compelling state interest in preventing that kind of widespread panic and disorder, and as long as the only people whose speech is stymied is people who make those kinds of specific and actionable threats, that are all but certain to cause mass disorder and untold harm, then yes, the government can prevent those people from engaging in that particular speech if possible, or, where prevention isn’t possible, punish them for engaging in that speech after the fact.
So, why are all these conservatives getting so angry about a comment that Justice Jackson made in regard to a purely hypothetical question that dealt entirely with persuasion through public speech? Furthermore, why do they seem to take the application of strict scrutiny as an affront to freedom of speech and the first amendment, when even the parties to this case fighting against the government’s social media censorship fully endorse the validity of applying a strict scrutiny standard to narrowly tailored speech restrictions.
Ultimately, the only place Justice Jackson and the Attorney General could not reach agreement on were the contours and extent to which strict scrutiny would recognize that narrowly tailored restriction of a compelling government interest. That is to say, when can they do this and how far can they go. There is no disagreement on the factual finding that there are times where the government may restrict speech under the strict scrutiny framework by anybody on any side of this case.
And here I think we get to the crux of why I perhaps find the willfully dishonest and maliciously misrepresentative tactics by hypocritical clowns like Jim Jordan so pernicious and so disgusting.
Because, nowadays, really the only difference between the political left and right when it comes to their attitude toward Freedom of Speech, the First Amendment and the Supreme Court is that while Republicans and Democrats both want to destroy these institutions, based on politically biased and selfish motives— the left, at least, have the common decency to admit that’s their objective. Whereas the right is a snake in the grass.
Conservative politicians never get tired of telling people that they are the defenders of the first amendment, the defenders of free speech and the defenders of the legitimacy of the Supreme Court— Even as their actions demonstrate a clear and coordinated effort to attack and undermine these institutions in every way that is suitable to their personal aims.
The Supreme Court is very, very far from perfect. But they are the only part of the government not so completely corrupted by the political poison of this insane notion of a culture war, that they remain the only place in our government the constitution ever properly gets defended anymore. That doesn’t happen all of the time. It doesn’t even happen most of the time. But it does happens some of the time— and that’s a hell of a better track record of defending the constitution than we have seen from the Congress or the White House in years, if not decades.
Cartago Delenda Est