Our lawyer clarified that the government cannot induce private platforms-or third-party censorship enterprises-to do what would be illegal for the government itself to do.
Consuming much of the oxygen in the room, the verbose and aggressive Kagan later returned to her traceability hobby horse, claiming it would be hard to tell whether the censorship in any given case was government action vs. platform action against the plaintiffs, even advancing the outrageous claim-contradicted time and again in the evidentiary record-that "It seems hard to overbear Facebook's will." Tell that to Mark Zuckerberg, who publicly admitted that they censored things which otherwise would not have been removed except for government pressure.
The government only needs to find one plaintiff that has standing for the case to move forward, and two of my co-plaintiffs-Jill Hines and Jim Hoft-were specifically named in government communications to social media companies regarding censorship.
Addressing our attorney, she concluded her case with this whopper: "My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods." She apparently fell asleep in her high school civics class and missed the part about the First Amendment being a constraint upon the government: its entire purpose is to "Hamstring the government in significant ways."
Regarding her hypothetical: presumably the government simply telling citizens not to jump out of windows, or working with parents to help children avoid this behavior, would be insufficient for her purposes without censorship to back it up.
To carry Ketanji Brown Jackson's wacky hypothetical a bit further, as my co-plaintiff Jay Bhattacharya explained in our interview after the oral arguments: it was the government, not the plaintiffs, that was telling people to jump out of windows, i.e., the government was recklessly harming our health and safety by its own misinformation during Covid.
To build a consensus, these three may narrow the Circuit Court's injunction by defining government censorship more strictly.
https://brownstone.org/articles/supreme-court-divided-on-censorship/
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