The Constitution guarantees free speech. Even speech that is plain wrong or idiotic. What is galling is that private firms like Twitter will ban someone, and they have the right to do it, who espouses conservative speech but will turn a blind eye to egregious mistakes by the Left. So people like Sotomayor get a pass while conservatives get cancelled. Law professor Jonathan Turley breaks down the issue.
“He did not have sexual relations with that woman”#SotomayorFacts
— pin • stripes (@Pin1stripe) January 8, 2022
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Turley: During the oral arguments over the Biden vaccine mandates last week, two largely disconnected views emerged from the right and left of the Supreme Court.
Conservative justices hammered away at the underlying authority of the Biden administration to issue these mandates, particularly after President Joe Biden’s own chief of staff admitted that the agency rules were “workarounds” of constitutional limitations. Conversely, the liberal justices used the “equity” aspects of an injunction to raise more emotive, if not apocalyptic, arguments on the dangers of COVID-19.
That led Justice Sonia Sotomayor to make a claim about children with COVID that even the Washington Post called “absurdly high” and worthy of “four Pinocchios. The incident raised a sensitive issue for some of us who oppose the massive censorship programs on Twitter and other social media platforms. Justice Sotomayor was spreading “disinformation” on COVID-19, so could she be barred from Twitter? As you might expect the answer is no, but that is precisely the problem with the corporate censorship embraced by many today.
The controversial statement of Justice Sotomayor could not have come at a worse time. She and her two liberal colleagues were arguing against substantial judicial review of the mandate orders in favor of extreme deference for the agencies. They argued that there was no time to waste in light of the dire crisis facing the country.
However, all three justices made claims that were challenged in terms of their accuracy. Justice Stephen Breyer, for example, declared there were “750 million new cases yesterday, or close to that.” He added that “is a lot. I don’t mean to be facetious.” It was not facetious, it was false. Yet, Sotomayor’s claims were the most alarming:
“Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.” In an interview on Fox News, CDC chief Dr. Rochelle Walensky confirmed that there are actually fewer than 3,500 kids with the virus in hospitals.
The argument was viewed by many as part of what sounded more like a legislative than a judicial debate over the mandate. That was ironic given how Justice Sotomayor recently objected that the “stench of politics” followed her three new colleagues to the Court.
Yet, we all make mistakes in the heat of arguments and I do not believe for a second that Justice Sotomayor was intentionally misleading or duplicitous in making this claim.
That, however, leads back to the free speech question. If someone quoted Sotomayor’s false statement on Twitter, would they be flagged or banned? How about Sotomayor herself (assuming she even has a Twitter account)? The answer is no.
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Clearly, Justice Sotomayor’s statement was false. As the Washington Post stated, it was “absurdly” false. However, overstating the risks of COVID-19 is not considered “harmful.” The social media companies target skeptics, not zealots.
Conversely, if someone posted that the new variant was producing fewer cases, it would likely be flagged and blocked. That would be deemed too dangerous for Twitter readers to consider.
Twitter can ban people like former President Donald Trump based on “how [their statements] are being received and interpreted on and off Twitter.” Even sharing the views of people like Trump can lead to a ban. My point is not that Sotomayor should be banned from social media, but that this controversy shows why censorship is both unnecessary and biased. Free speech has its own corrective element.