Politics

U.S. Supreme Court will examine Murthy v. Missouri

Published

2 years ago

March 18, 2024

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In a major case testing the role of the First Amendment in the internet age, the U.S. Supreme Court on Monday hears arguments focused on the federal government’s ability to combat what it sees as false, misleading or dangerous information online.
Last September, the 5th U.S. Circuit Court of Appeals, the most conservative federal appeals court in the U.S., issued a broad ruling that barred key government officials from contacts with social media companies. Among the personnel targeted in the order were officials at the White House, the Centers for Disease Control and Prevention, the Office of the Surgeon General, the FBI and an important cybersecurity agency.
The appeals court said that individuals at those agencies likely violated the First Amendment by seeking to coerce social media platforms into moderating or changing their content about COVID-19, foreign interference in elections and even Hunter Biden’s laptop. The Supreme Court has put that ruling on hold while it examines the tricky issues in the case.

The facts of the case

The plaintiffs in the lawsuit are two states, Missouri and Louisiana, and five individuals, including vaccine opponents, who either were banned from some internet platforms at the height of the COVID-19 pandemic or whose posts, they say, were not prominently featured on social media sites such as Facebook, YouTube and X, formerly known as Twitter.

The Biden administration notes that under established First Amendment precedent, the government itself is entitled to express its views and to try to persuade others. As the government says in its brief, “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 would advance the public interest.”

The administration’s opponents counter that the bully pulpit “is not a pulpit to bully.”

Jenin Younes, who represents the individuals who claim they were censored, argues that the government is essentially using social media companies as proxies to censor speech. And that, she contends, is unconstitutional state action.

“We’re talking about the government going after all major platforms and trying to get them to censor … entire points of view,” she says.

The government notes that officials in both Republican and Democratic administrations have interacted regularly with social media companies. Indeed, from the beginning of the pandemic in the Trump administration, the companies themselves reached out to government health agencies for guidance on what was and was not reliable medical information.

Former Obama White House counsel Kathryn Ruemmler said she was particularly struck in reading the lower court opinions in this case because “there really was no recognition … that the vast majority of these communications between the government officials and the social media companies related to a global health crisis.”

“If you think about what is the purpose of the government, why do governments exist? It’s really to protect the health and safety and welfare of its citizens,” she said during a panel discussion at New York University’s School of Law.

How the government interacts with social media companies

The government makes similar arguments about the FBI and other agencies’ dealings with social media companies. Former FBI general counsel Andrew Weissmann notes that private companies and the government typically benefit from this sort of back-and-forth.

“Let’s say that somebody from the Department of Defense alerts you to information about a terrorist group that is identifying” the location and address of a State Department employee abroad and calling for violence against that individual. Typically, Weissman says, “depending on the imminent danger,” the FBI general counsel would alert the social media company and have a conversation that would go something like this: “I wanted to flag for you” something that “seems to us it violates your policy. Obviously that’s for you to decide, but you can understand why … there is a grave concern on our part.”

The response, most of the time, says Weissmann, is that the social media company is grateful for the information and often takes down the post because it does violate company policy but was missed by the company’s algorithms. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.

Was speech censored?

That is hardly the picture painted by the other side in this case. They claim their speech was censored. Two of the plaintiffs are epidemiologists who were advocates of exposing most people to get COVID-19 in order to establish herd immunity instead of imposing lockdowns, masks and other steps taken by both the Trump and Biden administrations. The CDC has argued that there is no such thing as herd immunity with a virus like the coronavirus that causes COVID-19, which has constantly morphed and mutated.

But the plaintiffs in the case have produced dozens and dozens of quotes from government emails that they say prove the government’s coercive behavior.

“When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. And the result of that pressure was censoring certain viewpoints,” contends lawyer Younes.

That’s “kind of silly,” says former White House counsel Ruemmler, who notes that the president can’t remove existing legal protections for social media companies. Only Congress can do that.

Colin Stretch, former general counsel for Facebook, agrees that the idea of social media platforms bowing to government officials is outlandish.

“These are big companies. They don’t scare easy,” he says, adding that there always are competing political imperatives in public policy. “That’s life in the big leagues,” he said at NYU.
A forceful government response

The Biden administration, for its part, rebuts the plaintiffs’ coercion allegations in unusually forceful terms. “When I looked at the government’s brief, they don’t use the L-word, the ‘lying’ word, but they do everything but,” observes former FBI counsel Weissmann.

To cite just one example, the government rebuts the coercion claim drawn by the lower court from a White House email to Facebook. “Are you guys f***ing serious?” the email says, adding, “I want an answer on what happened here and I want it today.” Sounds bad, the government says, until you learn that the “admittedly crude email” concerned “a technical problem affecting the President’s own Instagram account—it had nothing to do with moderating other users’ content.”

Beyond the enormous factual disputes in the case, there are basic disagreements about how the courts should treat social media companies under the First Amendment and whether those regulatory policies should be made by the Supreme Court or Congress.

“There is no clear partisan line” in Monday’s case, observes NYU law professor Ryan Goodman. And you don’t have to be a genius to see that some politicians have a convenient way of switching sides, depending on the content of the speech at issue.

Missouri Attorney General Andrew Bailey, for instance, brought this case accusing the Biden administration of “arguably … the most massive attack against free speech in United States history.” But at the same time, he threatened legal action against Target for selling LGBTQ-themed T-shirts and other merchandise as part of a Pride campaign.

What the social media companies say

None of the social media companies are parties in Monday’s Supreme Court case, but they continue to assert that like other media companies, their speech and their choices of what to allow on their platforms are protected by the First Amendment. Those challenging that status contend that social media companies are more like utilities; they are hosts to other people’s opinions and thus don’t have the same First Amendment protections that newspapers and broadcasters have.

Presidents of both parties and members of Congress can and do say plenty of nasty things about social media companies in public; it’s the private communications that make critics suspicious, according to Jameel Jaffer, executive director of the Knight First Amendment Institute.

“It might be naive to expect the social media companies to be reliable proxies for the speech interests of their users,” he said at NYU.

Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. It sounds simple, but as Jaffer observes, “applying that rule is much more difficult than stating what the rule is.”

Just where the Supreme Court justices stand on this or other social media questions before the court this term is unclear. But in this case, the court’s three most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would not have paused the lower court’s decision while the case is litigated in the high court. They would have let it take effect.

A separate First Amendment case

After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The National Rifle Association sued the former head of New York state’s Department of Financial Services.
The NRA charged that during an agency investigation into so-called “murder insurance,” the Department of Financial Services violated the NRA’s free speech rights by issuing letters and news releases that dissuaded financial institutions from doing business with the gun rights advocacy group. “Murder insurance” is the derogatory term for insurance that covers the costs of using firearms to shoot another person, and it is illegal in New York. The 2nd U.S. Circuit Court of Appeals dismissed the NRA’s complaint, concluding that the news releases and letters were appropriate government speech, and the NRA then appealed to the Supreme Court.
Copyright 2024 NPR. To see more, visit https://www.npr.org.

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Poll: Support for Missouri abortion rights amendment growing

Published

1 year ago

August 29, 2024

Natural Bridge

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A proposed constitutional amendment legalizing abortion in Missouri received support from more than half of respondents in a new poll from St. Louis University and YouGov.That’s a boost from a poll earlier this year, which could mean what’s known as Amendment 3 is in a solid position to pass in November.SLU/YouGov’s poll of 900 likely Missouri voters from Aug. 8-16 found that 52% of respondents would vote for Amendment 3, which would place constitutional protections for abortion up to fetal viability. Thirty-four percent would vote against the measure, while 14% aren’t sure.By comparison, the SLU/YouGov poll from February found that 44% of voters would back the abortion legalization amendment.St. Louis University political science professor Steven Rogers said 32% of Republicans and 53% of independents would vote for the amendment. That’s in addition to nearly 80% of Democratic respondents who would approve the measure. In the previous poll, 24% of Republicans supported the amendment.Rogers noted that neither Amendment 3 nor a separate ballot item raising the state’s minimum wage is helping Democratic candidates. GOP contenders for U.S. Senate, governor, lieutenant governor, treasurer and secretary of state all hold comfortable leads.“We are seeing this kind of crossover voting, a little bit, where there are voters who are basically saying, ‘I am going to the polls and I’m going to support a Republican candidate, but I’m also going to go to the polls and then I’m also going to try to expand abortion access and then raise the minimum wage,’” Rogers said.Republican gubernatorial nominee Mike Kehoe has a 51%-41% lead over Democrat Crystal Quade. And U.S. Sen. Josh Hawley is leading Democrat Lucas Kunce by 53% to 42%. Some GOP candidates for attorney general, secretary of state and treasurer have even larger leads over their Democratic rivals.

Brian Munoz

St. Louis Public RadioHundreds of demonstrators pack into a parking lot at Planned Parenthood of St. Louis and Southwest Missouri on June 24, 2022, during a demonstration following the Supreme Court’s reversal of a case that guaranteed the constitutional right to an abortion.

One of the biggest challenges for foes of Amendment 3 could be financial.Typically, Missouri ballot initiatives with well-funded and well-organized campaigns have a better chance of passing — especially if the opposition is underfunded and disorganized. Since the end of July, the campaign committee formed to pass Amendment 3 received more than $3 million in donations of $5,000 or more.That money could be used for television advertisements to improve the proposal’s standing further, Rogers said, as well as point out that Missouri’s current abortion ban doesn’t allow the procedure in the case of rape or incest.“Meanwhile, the anti side won’t have those resources to kind of try to make that counter argument as strongly, and they don’t have public opinion as strongly on their side,” Rogers said.There is precedent of a well-funded initiative almost failing due to opposition from socially conservative voters.In 2006, a measure providing constitutional protections for embryonic stem cell research nearly failed — even though a campaign committee aimed at passing it had a commanding financial advantage.Former state Sen. Bob Onder was part of the opposition campaign to that measure. He said earlier this month it is possible to create a similar dynamic in 2024 against Amendment 3, if social conservatives who oppose abortion rights can band together.“This is not about reproductive rights or care for miscarriages or IVF or anything else,” said Onder, the GOP nominee for Missouri’s 3rd Congressional District seat. “Missourians will learn that out-of-state special interests and dark money from out of state is lying to them and they will reject this amendment.”Quade said earlier this month that Missourians of all political ideologies are ready to roll back the state’s abortion ban.“Regardless of political party, we hear from folks who are tired of politicians being in their doctor’s offices,” Quade said. “They want politicians to mind their own business. So this is going to excite folks all across the political spectrum.”

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Democrat Mark Osmack makes his case for Missouri treasurer

Published

1 year ago

August 29, 2024

Natural Bridge

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Mark Osmack has been out of the electoral fray for awhile, but he never completely abandoned his passion for Missouri politics.Osmack, a Valley Park native and U.S. Army veteran, previously ran for Missouri’s 2nd Congressional District seat and for state Senate. Now he’s the Democratic nominee for state treasurer after receiving a phone call from Missouri Democratic Party Chairman Russ Carnahan asking him to run.“There’s a lot of decision making and processing and evaluation that goes into it, which is something I am very passionate and interested in,” Osmack said this week on an episode of Politically Speaking.Osmack is squaring off against state Treasurer Vivek Malek, who was able to easily win a crowded GOP primary against several veteran lawmakers including House Budget Chairman Cody Smith and state Sen. Andrew Koenig.While Malek was able to attract big donations to his political action committee and pour his own money into the campaign, Osmack isn’t worried that he won’t be able to compete in November. Since Malek was appointed to his post, Osmack contends he hasn’t proven that he’s a formidable opponent in a general election.“His actions and his decision making so far in his roughly two year tenure in that office have been questionable,” Osmack said.Among other things, Osmack was critical of Malek for placing unclaimed property notices on video gaming machines which are usually found in gas stations or convenience stores. The legality of the machines has been questioned for some time.As Malek explained on his own episode of Politically Speaking, he wanted to make sure the unclaimed property program was as widely advertised as possible. But he acknowledged it was a mistake to put the decals close to the machines and ultimately decided to remove them.Osmack said: “This doesn’t even pass the common sense sniff test of, ‘Hey, should I put state stickers claiming you might have a billion dollars on a gambling machine that is not registered with the state of Missouri?’ If we’re gonna give kudos for him acknowledging the wrong thing, it never should have been done in the first place.”Osmack’s platform includes supporting programs providing school meals using Missouri agriculture products and making child care more accessible for the working class.He said the fact that Missouri has such a large surplus shows that it’s possible to create programs to make child care within reach for parents.“It is quite audacious for [Republicans] to brag about $8 billion, with a B, dollars in state surplus, while we offer next to no social services to include pre-K, daycare, or child care,” Osmack said.Here’s are some other topics Osmack discussed on the show:How he would handle managing the state’s pension systems and approving low-income housing tax credits. The state treasurer’s office is on boards overseeing both of those programs.Malek’s decision to cut off investments from Chinese companies. Osmack said that Missouri needs to be cautious about abandoning China as a business partner, especially since they’re a major consumer of the state’s agriculture products. “There’s a way to make this work where we are not supporting communist nations to the detriment of the United States or our allies, while also maintaining strong economic ties that benefit Missouri farmers,” he said.What it was like to witness the skirmish at the Missouri State Fair between U.S. Sen. Josh Hawley and Democratic challenger Lucas Kunce.Whether Kunce can get the support of influential groups like the Democratic Senatorial Campaign Committee, which often channels money and staff to states with competitive Senate elections.

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As Illinois receives praise for its cannabis equity efforts, stakeholders work on system’s flaws

Published

1 year ago

August 29, 2024

Natural Bridge

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Medical marijuana patients can now purchase cannabis grown by small businesses as part of their allotment, Illinois’ top cannabis regulator said, but smaller, newly licensed cannabis growers are still seeking greater access to the state’s medical marijuana customers.Illinois legalized medicinal marijuana beginning in 2014, then legalized it for recreational use in 2020. While the 2020 law legalized cannabis use for any adult age 21 or older, it did not expand licensing for medical dispensaries.Patients can purchase marijuana as part of the medical cannabis program at dual-purpose dispensaries, which are licensed to serve both medical and recreational customers. But dual-purpose dispensaries are greatly outnumbered by dispensaries only licensed to sell recreationally, and there are no medical-only dispensaries in the state.As another part of the adult-use legalization law, lawmakers created a “craft grow” license category that was designed to give more opportunities to Illinoisans hoping to legally grow and sell marijuana. The smaller-scale grow operations were part of the 2020 law’s efforts to diversify the cannabis industry in Illinois.Prior to that, all cultivation centers in Illinois were large-scale operations dominated by large multi-state operators. The existing cultivators, mostly in operation since 2014, were allowed to grow recreational cannabis beginning in 2019.Until recently, dual-purpose dispensaries have been unsure as to whether craft-grown products, made by social equity licensees — those who have lived in a disproportionately impacted area or have been historically impacted by the war on drugs — can be sold medicinally as part of a patient’s medical allotment.Erin Johnson, the state’s cannabis regulation oversight officer, told Capitol News Illinois last month that her office has “been telling dispensaries, as they have been asking us” they can now sell craft-grown products to medical patients.“There was just a track and trace issue on our end, but never anything statutorily,” she said.

Dilpreet Raju

Capitol News IllinoisThe graphic shows how cannabis grown in Illinois gets from cultivation centers to customers.

No notice has been posted, but Johnson’s verbal guidance comes almost two years after the first craft grow business went online in Illinois.It allows roughly 150,000 medical patients, who dispensary owners say are the most consistent purchasers of marijuana, to buy products made by social equity businesses without paying recreational taxes. However — even as more dispensaries open — the number available to medical patients has not increased since 2018, something the Cannabis Regulation Oversight Office “desperately” wants to see changed. Johnson said Illinois is a limited license state, meaning “there are caps on everything” to help control the relatively new market.Berwyn Thompkins, who operates two cannabis businesses, said the rules limited options for patients and small businesses.“It’s about access,” Thompkins said. “Why wouldn’t we want all the patients — which the (adult-use) program was initially built around — why wouldn’t we want them to have access? They should have access to any dispensary.”Customers with a medical marijuana card pay a 1% tax on all marijuana products, whereas recreational customers pay retail taxes between roughly 20 and 40% on a given cannabis product, when accounting for local taxes.While Illinois has received praise for its equity-focused cannabis law, including through an independent study that showed more people of color own cannabis licenses than in any other state, some industry operators say they’ve experienced many unnecessary hurdles getting their businesses up and running.The state, in fact, announced last month that it had opened its 100th social equity dispensary.But Steve Olson, purchasing manager at a pair of dispensaries (including one dual-purpose dispensary) near Rockford, said small specialty license holders have been left in the lurch since the first craft grower opened in October 2022.“You would think that this would be something they’re (the government) trying to help out these social equity companies with, but they’re putting handcuffs on them in so many different spots,” he said. “One of them being this medical thing.”Olson said he contacted state agencies, including the Department of Financial and Professional Regulation, months ago about whether craft products can be sold to medical patients at their retail tax rate, but only heard one response: “They all say it was an oversight.”This potentially hurt social equity companies because they sell wholesale to dispensaries and may have been missing out on a consistent customer base through those medical dispensaries.Olson said the state’s attempts to provide licensees with a path to a successful business over the years, such as with corrective lotteries that granted more social equity licenses, have come up short.“It’s like they almost set up the social equity thing to fail so the big guys could come in and swoop up all these licenses,” Olson said. “I hate to feel like that but, if you look at it, it’s pretty black and white.”Olson said craft companies benefit from any type of retail sale.“If we sell it to medical patients or not, it’s a matter of, ‘Are we collecting the proper taxes?’ That’s all it is,” he said.State revenue from cannabis taxes, licensing costs and other fees goes into the Cannabis Regulation Fund, which is used to fund a host of programs, including cannabis offense expungement, the general revenue fund, and the R3 campaign aiming to uplift disinvested communities.For fiscal year 2024, nearly $256 million was paid out from Cannabis Regulation Fund for related initiatives, which includes almost $89 million transferred to the state’s general revenue fund and more than $20 million distributed to local governments, according to the Illinois Department of Revenue.Medical access still limitedThe state’s 55 medical dispensaries that predate the 2020 legalization law, mostly owned by publicly traded multistate operators that had been operating in Illinois since 2014 under the state’s medical marijuana program, were automatically granted a right to licenses to sell recreationally in January 2020. That gave them a dual-purpose license that no new entrants into the market can receive under current law.Since expanding their clientele in 2020, Illinois dispensaries have sold more than $6 billion worth of cannabis products through recreational transactions alone.Nearly two-thirds of dispensaries licensed to sell to medical patients are in the northeast counties of Cook, DuPage, Kane, Lake and Will. Dual-purpose dispensaries only represent about 20 percent of the state’s dispensaries.While the state began offering recreational dispensary licenses since the adult-use legalization law passed, it has not granted a new medical dispensary license since 2018. That has allowed the established players to continue to corner the market on the state’s nearly 150,000 medical marijuana patients.But social equity licensees and advocates say there are more ways to level the playing field, including expanding access to medical sales.Johnson, who became the state’s top cannabis regulator in late 2022, expressed hope for movement during the fall veto session on House Bill 2911, which would expand medical access to all Illinois dispensaries.“We would like every single dispensary in Illinois to be able to serve medical patients,” Johnson said. “It’s something that medical patients have been asking for, for years.”Johnson said the bill would benefit patients and small businesses.“It’s something we desperately want to happen as a state system, because we want to make sure that medical patients are able to easily access what they need,” she said. “We also think it’s good for our social equity dispensaries, as they’re opening, to be able to serve medical patients.”Rep. Bob Morgan, D-Deerfield, who was the first statewide project coordinator for Illinois’ medical cannabis program prior to joining the legislature, wrote in an email to Capitol News Illinois that the state needs to be doing more for its patients.“Illinois is failing the state’s 150,000 medical cannabis patients with debilitating conditions. Too many are still denied the patient protections they deserve, including access to their medicine,” Morgan wrote, adding he would continue to work with stakeholders on further legislation.Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.

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