NYT on Free Speech: Speech We Loathe Is Speech We Must Defend

New York Times

Federal Court Protects Free Speech on Social Media!

 This is huge! Judge Doughty issued this order on July 4! Then he perhaps had a burger and shot off some fireworks celebrating liberty!!!

From Politico:

A federal judge in Louisiana ruled Tuesday that the Biden administration likely violated the First Amendment by censoring unfavorable views on social media over the course of the coronavirus pandemic, calling the efforts “Orwellian.”

U.S. District Court Judge Terry Doughty also issued a sweeping preliminary injunction barring numerous federal officials and agencies — including Surgeon General Vivek Murthy, Health and Human Services Secretary Xavier Becerra, White House press secretary Karine Jean-Pierre and all employees of the Justice Department and FBI — from having any contact with social media firms for the purpose of discouraging or removing First Amendment-protected speech.

 

Here is a powerful quote from Judge Doughty's memorandum ruling:

 " Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts  an   almost   dystopian   scenario.   During   the   COVID-19   pandemic,  a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian 'Ministry of Truth.'”

Whoa! I don't know if this injunction will stand, but regardless, it is wonderful to see these censorship efforts by the National Government see the light of day. Sunshine is the best disinfectant.

303 Creative Notes

A colleague  asked me a couple of questions following 303 Creative:

Does 303 Creative apply to inter-racial marriage web sites (as opposed to SSM websites)

Well, one answer to the race hypo is it won’t happen today; and if it does, the market will destroy the business of the web designer who refuses to create inter-racial wedding sites. At the end of the day, all viewpoints are protected, even ones we find despicable. And viewpoint discrimination is categorically prohibited. No need to apply a compelling interest test. 
But it works both ways. A gay web designer can not be compelled to create a web site proclaiming that homosexuality is “an abomination to the Lord.” All speakers are protected against laws compelling unwanted expression of ideas.

Which businesses are expressive businesses? Only religious ones?

303 is not a religious liberty case. It is a free speech case. And speakers always discriminate among ideas they think are true and those they think are false. Whenever the government compels speech, it violates the 1A. Indeed, if a public accommodation law required all businesses to post a sign over restrooms saying”trans-women are women,” it would violate 1A even for a non-expressive business, such as a restaurant or a widget shop. Compelled speech is expressive even if the business compelled to speak is not! 

What you are looking for in these cases is whether what the government compels is speech. If the government requires a restaurant to serve food to all comers, it is not a speech case. If the government requires an artist, a photographer, a poet, or a writer to create expression he wishes not to create, it is a compelled speech case. If the government requires all businesses to post a "Black Lives Matter" sign in their storefront windows, it is a compelled speech case. Just look for the speech!