RFK Jr.’s censorship case may have a greater impact on free speech than Missouri v. Biden.

Judge⁣ Terry Doughty’s ​groundbreaking ruling in‍ the censorship case Missouri v. Biden has‌ captured ⁢widespread ‍attention, especially after being affirmed​ by the Fifth Circuit Court of Appeals.‌ It’s no wonder. Now, the U.S. Supreme Court has announced that it will take up the case. This could potentially be the most⁢ significant Supreme Court term for‍ the protection of free speech in history.

However, there is another case that⁤ holds even greater implications for ⁤the freedom of American speech: Robert F. Kennedy⁤ Jr.’s lawsuit against Google. ‍Google​ has ⁢repeatedly censored ⁤Kennedy’s political speech ‍on ⁢YouTube, and with Kennedy launching ⁢an⁢ independent bid for‌ the White House and Google ‍intensifying its censorship efforts, this legal⁢ battle has⁢ gained immense significance.

Following a recent ‍hearing,‌ Kennedy’s case may also find its way⁣ to the Supreme Court, which will ⁢have to confront the extraordinary measures taken​ by ‍Big Tech to silence government critics like Kennedy. It will also address ‌the danger posed by the tech industry’s belief, shared⁣ by many government​ officials ‍and legal scholars, that more censorship⁢ is necessary. (I should note that I am one of the lawyers leading the⁣ Kennedy v.‌ Google case.)

Prior to the 2016 election, ⁤Big Tech rarely ⁢engaged in censorship. They provided ⁣users with tools to block unwanted content and used algorithms to filter out explicit ⁣material.⁣ Otherwise,‌ the online realm, from the ‌internet to⁣ social media platforms designed for smartphones ⁤and tablets, functioned as‍ a public forum—a digital equivalent of a town square—where people could freely express⁢ their views and engage in debates on political, social, cultural, and other⁤ issues. Content moderation policies primarily focused on blocking ​violent behavior and did ‍not involve censoring political or social speech.

In fact, during the “Arab Spring” uprisings in 2010 and 2011, social media platforms played​ a crucial role. YouTube ⁤even made exceptions to ‌its ban on violent content, allowing⁢ educational, documentary, and scientific videos related to the ‌Middle ⁣East uprisings. ⁢However, in response to violent postings by ⁤ISIS, YouTube reversed⁢ its policy in 2014 and prohibited content from​ terrorists and other “dangerous organizations.”

However, everything changed after‌ 2016⁤ when⁣ two seismic events—the⁢ United Kingdom’s ⁤Brexit vote and Donald ⁢Trump’s presidential victory—shook the‌ political ‌establishment. These ⁤unexpected ⁢outcomes⁣ led to the development⁣ of an alternative explanation: online​ misinformation ⁢deceived voters, influencing them to make “wrong” choices.‍ This narrative gained⁤ further traction‌ during the Covid-19 pandemic, resulting in a new era ‌of‍ online content moderation.

For instance, Facebook began ‌blocking posts that promoted protests​ against government “stay at​ home” orders, claiming‌ that such events violated social distancing guidelines. ⁢As I highlighted in an article last year, these actions demonstrated a concerning disregard for civil liberties, ‌with even organizations like the ACLU ​supporting them.

But⁤ that was just ‍the beginning. By 2021, ‍tech giants went ⁢as far‍ as removing⁢ the sitting U.S. ⁤president, Donald Trump, from ​their⁤ platforms. Calls⁢ for online⁤ speech censorship escalated, particularly after Joe Biden assumed‌ office.

Shortly after Biden’s inauguration, White House officials started pressuring Big Tech to censor dissenting voices, including those of Kennedy. Kennedy had emerged as a prominent⁤ critic of government health ⁤officials, particularly Anthony Fauci, the president’s chief medical adviser.

As Judge Doughty ⁣and the Fifth Circuit explained in Missouri v. ⁤Biden, the ⁣White House’s censorship campaign gained‌ momentum during ⁤the​ first ⁢six months of the Biden administration. It initially targeted public health critics like Kennedy, who challenged the ‌government’s⁤ efforts to ⁢promote​ Covid-19 ⁢vaccination. However, ‌it expanded to censor individuals who​ disagreed with public health officials on various ​topics.

One crucial aspect of Kennedy’s lawsuit​ against Google revolves around the fact that tech platforms rely entirely on government ⁤sources to determine what content should be‍ removed. Supporters⁤ of content moderation ⁤policies often ‌argue that tech⁢ companies⁢ are private entities with the freedom to act as they please. But ‌what happens when these companies depend ‌solely on the government to decide what speech should be censored? Why should the ‍government have ⁤the authority ‌to determine what is true and what is⁣ “misinformation”? After all, the government cannot directly regulate false speech, as established by the Supreme Court in N.Y. Times Company v. Sullivan. If the government lacks the power to directly⁣ regulate such content, why should ⁣Big Tech ‌platforms be allowed to rely on the government for regulation?

While ‍the cyber-left may argue that tech platforms are privately owned, it’s​ worth noting that the Supreme Court has previously referred to⁣ the internet ⁢as the “modern public square.” Additionally, the Court’s liberal justices have‌ acknowledged that conveying expressive content using ⁢someone else’s ⁢physical infrastructure is not a new concept. The tech giants, resembling public forums like town squares and sidewalks, have historically upheld‌ free speech ‌principles, regardless of ownership. In fact, the surgeon general⁤ has even described them as digital environments.

Some may argue that no official designation has⁣ been made ⁣declaring tech ⁢platforms as public forums.⁢ However, hasn’t that​ already been established by⁣ the Communications⁤ Decency Act‌ of 1996? This law granted tech platforms immunity⁢ in ‍exchange⁢ for hosting public speech, essentially creating a ‍global community message board. The modern internet would not exist⁤ without this legislation.

Undoubtedly, the ​Supreme‍ Court may ‌hesitate ⁢to declare tech platforms as public forums, as it may not align with the⁤ conservative⁣ institutionalist philosophy of Chief Justice ‍John Roberts. Justice Anthony Kennedy, who authored the opinion in ⁤ Packingham v. North Carolina, would have been more receptive to such an ⁤argument. However, his retirement and replacement by Justice ⁤Brett Kavanaugh, who has shown little interest⁢ in free speech matters, complicates the situation. ⁤In fact, Kavanaugh authored an anti-free speech⁢ opinion in the 2019 case Manhattan Community Access Corporation v. Halleck.

Nevertheless, ⁣designating tech platforms as public forums would be a wise decision. In Missouri v.‌ Biden, the ⁤Supreme Court grapples with the ‍distinction between government speech, which is encouraged, and government⁢ coercion, which is prohibited. This is why the ​Court stayed⁣ the injunction against government officials issued by the⁤ Fifth Circuit.⁢ Instead of solely focusing on this distinction, the Supreme Court⁤ should⁢ recognize tech platforms as public forums where viewpoint discrimination is always forbidden, while reasonable ‌time, place, and manner restrictions remain valid.

This is precisely why Kennedy‌ v.‌ Google holds immense significance. It delves beyond ⁣the government speech versus government coercion debate that may trouble free speech‍ advocates ​in Missouri v. Biden. It centers on the meaning of freedom of speech in ‌the American political process. It is high time for the‍ Supreme Court to address these⁣ issues and define what freedom of speech entails in the digital age for all ⁢Americans.