Unfortunately, Supreme Court Justice Ketanji Brown Jackson has given us Part 3 of our series “Dystopias – New or Old” and it happens to be due to the same court case that inspired Part 2: Missouri v Biden (now called Murthy v Missouri). Here is the link to Part 2 of the series:
Justice Ketanji Brown Jackson’s comments on the first Amendment during oral arguments in Murthy v Missouri have gone viral, and for good reason.
“My biggest concern is that your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods,” Justice Ketanji Brown Jackson told the lawyer representing Louisiana, Missouri, and private plaintiffs.
“And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information,” she continued.
“So can you help me? Because I’m really — I’m really worried about that because you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective, and you’re saying that the government can’t interact with the source of those problems,” Jackson added.1
The title of a Conservative Brief article reporting on Justice Jackson’s comments was “Liberal SCOTUS Justice In Hot Water For ‘Chilling’ First Amendment Comments,” that chilling comment being that “My biggest concern is that your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods.” As you our Readers know, the entire point of the First Amendment (and all of the Constitution and Bill of Rights) is specifically to hamstring the federal government and Justice Jackson’s apparent lack of understanding of this point is truly chilling.
Let us not forget that it was Ketanji Brown Jackson as a Supreme Court Nominee who stated that she was unable to give a definition of the word “woman” because she’s not a biologist.2
The Declaration of Independence
The opening sentences of the Declaration are
WHEN in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
Hamstringing the Government is the Whole Point
We are very familiar with the phrases in the Declaration of Independence about “all men being created equal” and being “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness,” and those phrases set the stage for the important second half of this sentence which defines the purpose of civil government: “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” This is a radical proposition that the sole purpose of the civil government is to protect the rights of the people. Not regulate or control the people but rather to legislate in such a way that the peoples’ rights are secured.
When the Founders drafted the Constitution, they followed this concept that they had introduced in the Declaration, giving the federal government very limited power. Article I, Section 8 lists (only) 18 specific powers of Congress (which is the only law-making branch of the federal government). Articles IV and VI define the delineation between the federal government, the States and the people in certain specific circumstances, further defining and limiting the power of the federal government. Article V describes the Amendment process that gives a larger role to State governments than is given Congress.
When the Founders were debating the Constitution, some thought it essential to include a Bill of Rights describing rights that the civil government must protect. Others argued against including a list of rights, lest that list be construed as being the only rights protected. The Tenth Amendment is important in this regard:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So our Constitution and Bill of Rights circumscribed a very limited role for the federal government, reserving all other power in the universe to the States and the people. If it ain’t in the short list in the Constitution, the federal government can’t do it. We have unfortunately come so far away from the original intent and meaning of our founding documents!
The First Amendment
Before returning to Justice Jackson’s remarks, let’s reread the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Congress shall make no law. That’s pretty unequivocal. Congress (meaning the law-making part of civil government) shall make no law abridging the freedom of speech. And if Congress makes no law, the President in the Executive branch has no authority to enforce any prohibitions against speech. And the Courts, if they rule constitutionally, can only declare that no limitations are Constitutional.
Murthy v Missouri
The context of Murthy v Missouri is the federal government’s collaboration with big tech to limit what they defined as mis- and dis- information during Covid. Missouri and Louisiana sued the federal government, arguing that the federal government is constitutionally prohibited from being involved in censorship.
The whole concept of a “health emergency,” or really any kind of “emergency,” giving the federal government the authority to suspend the First Amendment (among other rights) in the interest of public safety is flawed. There are no exceptions listed in First Amendment, emergency or not.
The rights described in the Bill of Rights are unalienable rights given by God and the sole purpose of federal government is to preserve those rights, not take them away in the interests of an “emergency.”3 The fact that the actual rules and restrictions implemented by civil governments, at all levels, have all been shown to have been unnecessary at best and in fact often harmful, is all the more reason that the Supreme Court should rule 9-0 in favor of free speech. Based on Justice Jackson’s clear lack of understanding of our Founding documents, it does not appear that we will see that result. Let us hope and pray that the other eight Justices have a better understanding of the Constitution than Justice Jackson.
Quotes are from the Conservative Brief article “Liberal SCOTUS Justice In Hot Water For ‘Chilling’ First Amendment Comments” https://conservativebrief.com/liberal-supreme-justice-81927/
https://www.blackburn.senate.gov/2022/3/video-release-judge-jackson-cannot-define-woman-during-blackburn-scotus-day-two-hearing-remarks The question about what a woman is starts at 17:14
The issue of what actions States can take, in normal times or emergencies, is another discussion entirely. Remember that all power except the limited list of powers granted to the federal government belong to the States and the people so we would need to examine what States can do under the US Constitution and the individual State constitutions and laws for that discussion.