Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government

In a debate Monday at the Supreme Court challenging the Biden administration’s alleged coordination with Big Tech to censor certain messages, one justice raised eyebrows in her comments about the government’s relationship with the First Amendment. 

The case stems from a lawsuit brought by Republican-led states Missouri and Louisiana that accused high-ranking government officials of working with giant social media companies "under the guise of combating misinformation" that ultimately led to censoring speech on topics that included Hunter Biden’s laptop, COVID-19 origins and the efficacy of face masks — which the states argued was a First Amendment violation. 

In nearly two hours of oral arguments, the justices debated whether the Biden administration crossed the constitutional line, and whether its outreach efforts with private companies amounted to permissible persuasion or encouragement versus illegal coercion or threats of retaliation.

"It's got these big clubs available to it, and so it's treating Facebook and these other platforms like their subordinates," Justice Samuel Alito said. But Justice Ketanji Brown Jackson took a different approach.

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"Your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods," she told the lawyer representing Louisiana, Missouri and private plaintiffs. 

"The government actually has a duty to take steps to protect the citizens of this country... by encouraging or even pressuring platforms to take down harmful information," she said.

"Justice Jackson appears to be saying that she believes that the states’ view would prevent the government from explaining its facts or positions to the social media companies when there is some danger or imminent threat," John Shu, a constitutional attorney who served in both Bush administrations, told Fox News Digital, noting that the "heart" of the case "revolves around where the differentiating line between persuasion and coercion exists."

"The First Amendment does not prevent government officials from complaining about a particular post or explaining why the post is factually incorrect. In fact, that’s why X has the ‘Community Notes’ function," he said. 

However, Shu noted that the First Amendment "prevents government officials from coercing, whether explicitly or implicitly, publishers to remove posts or articles because the government disagrees with or doesn’t like that viewpoint, even if it is under the guise of ‘national security’ or ‘public health.’"

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Missouri Attorney General Andrew Bailey told Fox News Digital in an interview that Justice Jackson was "absolutely right."

"It is hamstringing, and it's supposed to. The whole purpose of the Constitution is to protect us from the government, and the government exists to protect our rights. But here, the federal government is ignoring our First Amendment protections and weaponizing the federal government to silence our voices," Bailey said. 

"And she's right. It limits what the federal government can and can't do. And that's a good thing," he added. 

The lawsuit from the states alleges 67 federal agencies and officials coerced platforms like Facebook and Twitter/X to censor individual posts, primarily related to COVID-19 restrictions imposed by the past two administrations, as well as the 2020 presidential election results.

Those cited include White House communications staffers, the surgeon general, the FBI and the U.S. cybersecurity agency.

In a July 4 court order last year, U.S. District Court Judge Terry A. Doughty imposed the temporary injunction preventing White House and executive agency officials from meeting with tech companies about moderating content, arguing that such actions in the past were "likely" First Amendment violations.

The Fifth Circuit Court of Appeals extended the scope of the injunction, and said officials could not "coerce or significantly encourage" changes in online content. 

In its appeal to the Supreme Court, the Justice Department argued that "a central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the President believes would advance the public interest." That includes areas like public health, voting integrity and national security threats.

In Monday’s oral arguments, conservative justices were most vocal against the federal government's actions, which Alito in October — when the appeal first arrived at the high court — said was "heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news."

Justice Clarence Thomas suggested how the federal government might subtly coordinate with tech firms. "You just work together, said: Look, we're right; they're wrong. Let's work together. You know, we're on the same team. Let's work together to make sure that this misinformation doesn't gain sort of any following."

But several of their conservative colleagues were concerned about hamstringing the federal government too severely. One hypothetical raised in court was how to respond to an epidemic sprouting online, in which young people were being encouraged as a dare or stunt to record themselves jumping from windows to the ground below, at ever-increasing heights.

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"The government is not monolithic either," said Chief Justice John Roberts, using another hypothetical. "Maybe EPA is trying to coerce a platform about something, and the Army Corps of Engineers is trying to coerce them the other way? I mean, you can't just sort of pick and choose which part of the government you're concerned about."

When the lawyer for the plaintiffs argued the federal government was indirectly engaging in "encouragement" with platforms, Justice Amy Coney Barrett interjected. 

 "Just plain vanilla encouragement, or does it have to be some kind of significant encouragement? Because encouragement would sweep in an awful lot."

Justice Elena Kagan raised national security concerns. 

"Terrorists engage in things that come under the First Amendment. Let's say they're just recruiting people for their organizations" online, she asked. "There's all kinds of things that can appear on these platforms that do all kinds of different harms, and the inability of government that you're suggesting to reach out to these platforms and say: ‘We want to give you information that you might not know about on this.’"

Jenin Younes, counsel for the New Civil Liberties Alliance who represented private individuals in the case said they were "optimistic." 

"Our clients, who include top doctors and scientists, were censored for social media posts that turned out to be factually accurate, depriving the public of valuable perspectives during a public health crisis," Younes said.

"We’re optimistic that the majority will look at the record and recognize that this was a sprawling government censorship enterprise without precedent in this country, and that this cannot be permitted to continue if the First Amendment is to survive."

Fox News' Bill Mears and David Spunt contributed to this report.