Advertisement

Subscriber-only Newsletter

By David French

Opinion Columnist

If you really want to understand the conservative-dominated Supreme Court, it’s important to realize that all the Republican nominees who sit on it formed their legal philosophy and forged their legal reputations long before Donald Trump was elected president. This is no less true of Trump’s three nominees than of the three justices who were nominated by previous Republican presidents. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all possessed a robust legal identity and a considerable body of work before their selection to the high court. In fact, each has his or her own maverick streak, with Gorsuch perhaps most notable in his steadfast defense of Native Americans and the rights of criminal defendants.

When you understand this reality, what can seem to be a confounding, surprising Supreme Court term is actually predictable. The Trumpist right is lobbing a number of novel cases presenting aggressive legal theories to justices with pre-Trump legal philosophies, and the pre-Trump justices are rejecting them, repeatedly.

Wednesday morning, the court decided Murthy v. Missouri, and it fit this pattern perfectly. Barrett, writing for a six-justice majority that included Kavanaugh and his fellow Republican-nominated Chief Justice John Roberts and the Democratic nominees Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, rejected right-wing plaintiffs’ efforts to sharply restrict government communication with private social media platforms.

The case centers on one of MAGA’s most urgent concerns: blocking social media moderation of right-wing speech. Some of these concerns are legitimate. I’ve long been worried that social media moderation is both too broad and too vague.

But one reason so many MAGA voices faced problems with social media moderation was that they systematically violated the platforms’ terms of service. At their worst, MAGA voices flooded social media with outright lies and disinformation about the 2020 election and the safety and efficacy of the Covid vaccines. Now MAGA seeks both to force private companies to host their speech and to silence federal efforts to combat dangerous lies.

Murthy involves the latter effort. The case was brought by two states and five private individuals who claimed that the federal government, including the surgeon general, Vivek Murthy, engaged in a coercive, unconstitutional effort to suppress and silence posts that contained what it alleged was misinformation or disinformation. The plaintiffs argued that this government pressure meant that the private content moderation was, in essence, government censorship — that the social media companies were bending to government threats and demands rather than exercising their own judgment.

Again, there are legitimate concerns about government coercion of private speech. On May 30, the Supreme Court unanimously ruled in favor of the National Rifle Association, holding that New York officials may have violated the Constitution by attempting to coerce third parties not to do business with the N.R.A. The core holding was simple and constitutionally correct: The government violates free speech rights when it engages in conduct “that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech.”

The road map for the plaintiffs in the Murthy case was clear. If they could prove that government threats caused the social media companies to censor their posts, then........

© The New York Times