Horowitz: Barrett and Kavanaugh believe in corporate First Amendment rights but not individual First Amendment rights
In the worldview of the majority of Supreme Court justices, the police power of a state is so strong that the state can employ it to destroy anyone’s life for not injecting a dangerous therapeutic into his body. That is essentially the upshot of two years’ worth of decisions from all the justices not named Thomas, Alito, and Gorsuch regarding COVID mandates on one’s person.
Yet these same judges now believe that a state is powerless to regulate public common carriers that have a monopoly over the flow of information and stop them from completely tilting our elections to one side and boxing out one point of view and the candidates representing it from today’s public square.
On Tuesday, the Supreme Court voted to reverse the Fifth Circuit and uphold a district court’s injunction on Texas’ H.B. 20, a new state law that prohibits large social media platforms that claim to be open to the public from blocking, removing, or “demonetizing” content based on the users’ political or social views. Chief Justice John Roberts and Justices Amy Barrett and Brett Kavanaugh joined Breyer and Sotomayor in the majority, but did not publish a written explanation for the decision. Justice Alito dissented and was joined by Gorsuch and Thomas. Kagan would also have opted against the injunction, but did not join Alito’s written dissent.
Alito emphasized in his dissent that because these companies are relatively new and present a novel question of what defines a common carrier, the law should be allowed to remain in place by default as the merits of the case are adjudicated in the district court.
“While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect,” wrote Alito in his dissent on the motion. “The Court of Appeals, after briefing and oral argument, concluded that the District Court’s order should be stayed, and a decision on the merits can be expected in the near future. I would not disturb the Court of Appeals.”
Presumably, the majority subscribed to the arguments of the tech companies and the Texas district judge that the law violates their First Amendment rights to free speech. Indeed, last week, the Eleventh Circuit blocked Florida from enforcing a similar law, asserting that the provisions of the law “are substantially likely to violate the First Amendment.”
But the reality is that we have basic anti-discrimination laws applied even to small businesses in fields without any monopolies. One can debate their constitutionality, but if we are going to operate in that world, then it must be applied evenly, especially for public common carriers of the most vital venues of information dissemination. Also, Alito notes that Texas is arguing these companies benefit from exemption from liability precisely because they claim not to be publishers with a particular First Amendment endorsed-opinion and are just carriers for other people’s opinions. They can’t have it both ways by then claiming they are publishers and have a First Amendment objection to certain content they disagree with.
Then again, it is Justices Kavanaugh and Barrett who have it both ways on state regulatory authority and individual rights. In March, these same justices placed a “partial stay” on a lower court injunction in the case Austin v. U.S. Navy Seals 1-26, which prevented the Navy from taking adverse action against SEALs who filed for religious exemptions from the vaccine mandate. Somehow there is no concern for bedrock First Amendment rights – even when it affects the human body itself – when a state wants to regulate it.
And even on First Amendment rights of business owners, Barrett and Kavanaugh only seem to recognize such rights as applied to giant monopolies working with government to discriminate against an entire group of political and religious dissidents. When it comes to small businesses asserting First Amendment rights? Not so much.
This is the same roster of judges who denied an appeal from Barronelle Stutzman, owner of Arlene's Flowers, to assert the private property, free speech, and religious liberty right to decline to service a same-sex ceremony with floral arrangements. Only Alito, Thomas, and Gorsuch would have taken the appeal, but the other GOP-appointed judges were just fine with states forcing businesses to provide services.
So once again, at a time when we are told private businesses can demand that patrons or employees cover their breathing orifices or accept an experimental injection, we are also told a private business must actively service an anathema to the proprietor's religion. A mom-and-pop shop can’t merely decline to service an event that violates the tenets of every major religion, but every major corporation in an entire industry can collaborate with government to essentially implement apartheid and box out people from all employment if they don’t get an experimental shot. They can work with government to censor every last person from using the main mode of free speech in the era we live in. As we now know from private emails between Anthony Fauci and Facebook’s Mark Zuckerberg, they collaborated at every stage of this fascism to censor, marginalize, and discriminate against anyone who disagreed with the government.
There are also big differences between the Big Tech denial of service and the small Christian business owners who refuse to service a particular event. In the case of the tiny single proprietorships, the owners personally create with their hands sentimental products and are being forced against their will to create something that violates their religion. The Big Tech platforms, on the other hand, are merely an equal opportunity communication venue where they are clearly not connected to the specific ideas of any particular poster.
Also, there are endless venues for individuals who want to hold a gay ceremony to patronize. In fact, I'm sure they can actually find greater bargains and better service for their championed endeavors than the rest of us. Yet, somehow, Big Tech can collude to box out any conservative from accessing any way of effectively communicating, obtaining e-commerce, or even getting a job in the economy, in contravention to foundational antitrust laws and principles. So, if three companies buy up all the roads, they could block conservatives from traveling anywhere, but mom-and-pop shops must personally make products for events and speech that they find offensive!