Being a fan of history, I often enjoy Heather Cox Richardson’s discussion of current events in a historical context. But she’s a much better historian than lawyer, which makes sense since she’s not a lawyer, but doesn’t seem to give her pause to consider whether she should incorporate  her legal insights into her daily newsletter.

That the injunction claims to protect free speech by forcing people to stop communication was not lost on observers. Harvard constitutional law professor Laurence Tribe called the injunction “blatantly unconstitutional” and noted: “Censoring a broad swath of vital communications between government and social media platforms in the name of combating censorship makes a mockery of the first amendment.” Tribe joined law professor Leah Litman to eviscerate the “breathtaking scope” of the order.

While Larry Tribe’s views on law have become the subject of some consternation within the legal profession and legal academy, this particular twit got some traction among the full panoply of MSNBC legal commentators and progressive prawfs.

Whether you agree with Judge Terry Doughty (who was a Trump appointee, as is now necessary to include lest you not realize he came from the dark side) or not is beside the point. The point is that an injunction against the United States cannot, ever, be “unconstitutional.”

In the ruling, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana said that parts of the government, including the Department of Health and Human Services and the Federal Bureau of Investigation, could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”

The pro-government forces are certain the injunction, at minimum, is wildly overbroad since it’s the government’s responsibility to stop the spread of dis- or misinformation, defined as whatever the government believes to be false. The anti-government forces are certain the exceptions to the injunction have gaps big enough to drive a Mack truck through. Whether you’re on the pro or anti side likely bears upon whether you prefer the government be the arbiter of truth or whether the government’s kindly requests of social media platforms is reminiscent of a mob boss making a suggestion.

Is it Censorship?

Nice social-media company here. Be a shame if something was to … happen to it.

Everybody knows what the mobsters are saying.

Will no one rid me of this turbulent priest?

You know what the king means. Everybody knows what the king means.

At an April 25, 2022, White House press conference, after being asked to respond to news that Elon Musk may buy Twitter, Psaki again mentioned the threat to social-media companies to amend Section 230 of the Communications Decency Act, linking these threats to social-media platforms’ failure to censor misinformation and disinformation.

Everybody knows. The government doesn’t have to say “censor these messages” to cause the social-media companies to censor these messages.

Regardless of your stance relative to the government asking social media platforms in dulcet tones to rid themselves of assertions with which the government disagrees, does the government have any “right” to do so such that its “rights” can be violated by an injunction prohibiting it from doing so?

And while the First Amendment says “Congress shall make no law…” it doesn’t apply only to the laws made by Congress, nor only to Congress. Instead it forbids governmental restrictions, generally, restricting the freedom of speech.

More specifically, the government can be held responsible for a private censorship decision when it “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky.

The First Amendment and the caselaw interpreting it make clear that the government, whether by law or by executive pressure, can violate the Constitution because it is a limitation on the government’s assertion of authority, of power, against private citizens, entities and, well, people. The government only possesses the power given it by the Constitution, although it’s been interpreted with sufficient breadth as to raise serious concerns where the lines end. But what the Constitution does not do, and could not logically do, is give the government rights. It has no rights. It has no right to exercise its power, but only the authority granted by the Constitution. Rights are the things that the government can violate, and not the thing that can be violated when the government acts.

If academics and legal analysts are wrong to claim otherwise, Judge Doughty is somewhat to blame.

Government agencies have no Constitutional rights. The trial court in Louisiana stated that “A government entity has the right to speak for itself and is entitled to say what it wishes and express the views it wishes to express.” This is false.

As the Texas Tornado, Mark Bennett, notes, Utah v. Summum provides that the “First Amendment cannot be used to compel the government to say things. The government has the power not to say what it doesn’t want to say, and may lawfully use this power.” But this is about the government’s authority, not its “rights.”

Unregulated use of power is not a right. It is easy to mistake a power for a right, but rights are why the party with lesser power can do what it wants despite the more powerful party wanting to stop him.

The government of the United States already possesses rather significant power over its people. It can take away our money. It can put us in prison. It can dictate how we run our business. It can send people with guns to our homes unannounced in the middle of the night. Let’s not make the government the victim by imbuing it with rights it doesn’t possess in order to condemn Judge Doughty’s injunction or endorse the government’s deciding what is sufficiently true as to leave social media alone for another day.