Murthy v. Missouri Among Most Important First Amendment Cases of the Century: Jeff Landry

All eyes have been on the Supreme Court, where justices have recently heard oral arguments in Murthy v. Missouri. This landmark case is about defining appropriate government powers in relation to Americans’ First Amendment rights on social media.

Among those watching closely is Louisiana Gov. Jeff Landry, who, during his tenure as Louisiana’s attorney general, co-filed the initial challenge—originally named Missouri v. Biden—against the Biden administration alongside Missouri Attorney General Eric Schmitt.

The case is now called Murthy v. Missouri.

The former attorney general said that the outcome will determine “whether or not American citizens can express their views that may be contrary to the government’s position” without fear of the government pressuring social media platforms to take down their content.

“I do believe it’s one of the most important First Amendment cases in the last 100 years,” he said.

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He noted that the outcome of the case will determine “whether or not we’re going to be free from government intervention when we question the government in a private platform like social media. And that’s a pretty scary thing because, in today’s world, social platforms basically act like virtual public squares, it’s where people express views.”

The governor lamented that Americans’ First Amendment right to have unfettered access to their own free speech as well as that of others was what the internet was “supposed to be about.”

“It was about giving us a virtual marketplace of ideas where we could talk back and forth and question and discuss issues,” he said.

But recent revelations about the Biden administration’s intervention and pressure on Big Tech companies in recent years have changed this, Mr. Landry said.

“We thought it [the internet] was free from government intervention. And what we’re finding is that the government—when it doesn’t like some of the things that you say or post when it’s contrary to what the rhetoric is that they believe in—have the ability to go in and pressure and coerce new social platforms to either take you down or put you in ‘Facebook jail,’ moderate your content, or simply just eviscerate you from that virtual public square.”

While the Biden administration appealed, the Fifth Circuit Appeals Court upheld the lower court’s injunction in September 2023, finding that some communications by the federal government with social media companies violated the First Amendment. But the court also said that Judge Doughty’s preliminary injunction was too broad and ordered narrowing it to government attempts to “coerce or significantly encourage” moderation of content.

In his July 4, 2023, ruling, Judge Doughty wrote: “The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed.

“It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.”

Mr. Landry said that without Missouri v. Biden, Americans would not have become aware of the extent of the FBI’s knowledge regarding the previously unknown Hunter Biden laptop evidence.

“All of those things came out in this case. We were able to extract that information and peel the curtain back of all of the things the government was trying to suppress,” the governor said.

Justices Re-examining First Amendment

Mr. Landry said that he has been left concerned—perhaps prematurely, he acknowledges—and perplexed about the line of questioning by some of the justices after they heard opening arguments on the case.

After listening to their questioning of Louisiana’s new solicitor general, Mr. Landry said he was “really scratching my head at some of the questions that the justices offered.”

The state’s solicitor general is LSU law school graduate Benjamin Aguiñaga, who replaced Liz Murrill when she became the state’s new attorney general.

“Some of the questions seem to really leave you wondering whether or not the Court still has a real appreciation for the First Amendment and the reason that the First Amendment was placed in the Bill of Rights as the First Amendment,” Mr. Landry said.

“You know, it should be unquestionable whether or not the government can infringe upon the First Amendment rights of a citizen. And that answer should be, ‘No, it cannot,’” he said.

He noted from the opening arguments that some justices seemed to be “convinced that there are times under which the government can censor Americans’ speech,” citing a “compelling interest.”

This, Mr. Landry explained, was in relation to some Supreme Court precedent set up as a two-prong test.

To date so far, he said, that test says that the government “may violate a person’s constitutional right if it can prove that it has a compelling interest in doing so” but only when it also meets the second necessary criteria of a specific instance when this withholding of an American’s First Amendment right would be appropriate.

“That’s not what Justice Jackson was saying,” he said, according to his observation. “She was trying to broaden that test, to basically say: we don’t even have to say whether or not the government has violated someone’s First Amendment, we can just say the government always has a compelling interest in say its duty to protect the public. And I think that was the problem.”

“And so if the justices rule against us, Americans will not have a way to find out what the government is doing,” Mr. Landry explained of his concerns. “When they want to question the government, they won’t know that the government is trying to squash your speech.”

He said it would be possible for the government to call a social media platform to say that they don’t like what someone is saying, and instruct the company to take it down. “And you will have no recourse,” he said.

“They seem like they wanted to broaden that test,” he said of the line of questioning by some justices. “So I don’t know, I’m hoping maybe that was just a couple of questions they needed to answer before they got to the right conclusion but we’ll see.”

Mr. Landry said that the justices aren’t limited to questions explored in the oral arguments when proceeding with the rest of the case.

“Sometimes the justices have a tendency to tip their hand,” he explained. “Sometimes they’re asking questions just to maybe vet something that was vexing them. It doesn’t mean that that’s the position they’re taking,” he said, hoping that the inquiries made into exemptions to the First Amendment will not be the future direction of the case.

“I don’t know. We’ll see in June maybe when the court makes a decision, maybe sooner.”