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A guide for the upcoming Supreme Court term: What you need to know about your constitutional freedoms

Forget the return of the Pumpkin Spice Latte to Starbucks menus. Fall means the Supreme Court is back!

Yes, the 2023-2024 Supreme Court term started on Monday, October 2.

There are a lot of big cases on the Court’s docket already. And the Court will continue announcing through January any additional ones it will hear this term.

My colleagues are some of the most knowledgeable people on the issues that are before the Court, so I’ve recruited several of them to highlight how your constitutional freedoms may be impacted by the Court’s decisions this year.

Online censorship

Missouri v. Biden is a major case that highlights the federal government’s efforts to control the dissemination of information online via social media.

The challenge started last year when Missouri and Louisiana filed lawsuits, claiming public officials were censoring online discussion of COVID-related issues.

The Fifth Circuit found that the Federal Bureau of Investigation (FBI), the Center for Disease Control and Prevention (CDC), the Surgeon General, and White House officials themselves likely violated the First Amendment.

Asking the Supreme Court to intervene and allow Biden Administration officials to continue to seek removal of social media posts and users, the U.S. Solicitor General told the Supreme Court that the Fifth Circuit’s decision imposes “unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern.”

The government’s coercion, though, was done secretly – more bully than pulpit. Rather than winning hearts and minds in the public arena, they went behind closed doors and, as the Fifth Circuit noted, were “commandeering [platforms’] decision-making processes” to encourage social media companies to censor speech disfavored by the government.

The government jawboning — when government officials bully social media platforms like X (formerly Twitter), Facebook, and YouTube into making certain content moderation decisions by threatening them with the possibility of regulatory changes, legislation, and onerous investigations — revealed by this case isn’t news to many people increasingly concerned about their civil liberties and their ability to use online platforms to get their news, connect with each other, and debate the most pressing issues of the day.

Whether it is the White House, the CDC, the DHS, or another arm of the larger government apparatus, it’s concerning when a government actor with significant power wields it in an attempt to act as the authority to determine what speech counts as good or true. Doing so undermines the public’s trust in these institutions that are meant to serve Americans, not suppress them.

After a trip back down to the Fifth Circuit, it looks like this case will be back on the Supreme Court’s docket in the coming weeks.

James Czerniawski, AFP Senior Policy Analyst

Digital speech

The Supreme Court granted review of social media laws from both Florida and Texas: Moody v. NetChoice and NetChoice v. Paxton. Each case was brought by NetChoice, arguing that the states’ efforts to limit social media platforms’ ability to moderate user content and to impose required disclosures violate the platforms’ First Amendment rights.

Unlike Missouri v. Biden, which focuses on stopping the government from pressuring social media platforms to remove content, these laws are aimed at the platforms’ own content moderation decisions – giving government the power to forbid the platforms from deciding themselves to remove users or content from their sites.

From a legal standpoint, the states are on shaky ground. And the temptation to impose “neutrality” on social media platforms carries risks that are likely to leave people regretting that they hadn’t been more careful what they wished for.

Although we all want a more fair and equal world, when it comes to speech, imposing “fairness” is risky business because it is impossible to do so without chilling speech. Imagine if California politicians were the ones with the power to determine which content was fair and which had to go.

The Supreme Court has been diligent in protecting the rights of speakers to decline to carry the messages of others with whom they disagree and in rejecting attempts to recategorize speech as business activity that can be regulated. AFPF has supported some of these speakers, such as the right of website designer Lorie Smith and her business 303 Creative to decline to craft and host wedding websites for marriages that go against her religious beliefs.

While freedom to decline to speak or to host the speech of others may result in undesirable results for some speakers at some times, allowing the government to compel (or prohibit) such speech is a Rubicon that we cross at our peril. The Supreme Court will likely hear these cases this winter.

Cindy Crawford, AFPF Senior Policy Counsel

Administrative state overreach

As a reader of this newsletter, you likely remember this case from Casey’s newsletter back in May: In Loper Bright Enterprises, Inc. v. Raimondo, a group of small, multi-generational family-run fishing companies based in Cape May, NJ, are challenging a regulation that would require them to pay for government-approved third-party monitors to ride their boats and ensure compliance with fishing regulations.

Although the federal government has required fishermen to carry such monitors on their boats for decades, the novel industry-funding requirement — which is not explicitly authorized by statute — will have a devastating impact on the fleet and disproportionately impact small businesses and historic fishing communities.

The case really offers an unprecedented example of regulatory overreach and how the excesses of the administrative state can reach everyday Americans trying to make a living.

But the implications of Loper Bright are now even more significant.

When the Supreme Court granted the fishermen’s petition for writ of certiorari earlier this year, it limited review to the question of whether Chevron v. NRDC should be overruled or limited. Chevron is a 1984 case that instructs courts to defer to agency interpretations of ambiguous statutory provisions, so long as the agency interpretation is “reasonable.”

Represented by our fellow organization Cause of Action Institute and former Solicitor General Paul Clement, the fishermen argue that such “Chevron deference” permits agencies to push their authority well beyond what Congress intends, thus giving unelected bureaucrats incredible power over the American people. This creates a situation that doesn’t fit with our constitutional system of governance.

Chevron has significantly diminished political accountability of the administrative state, and it erodes the checks and balances essential to our democracy. Loper Bright could reset the separation of powers to what our Founders intended: A world where judges — not agencies — interpret the law and Congress —not agencies — write the law. And that would impact not just the economy, but civil liberties as well.

Ryan Mulvey, AFPF Policy Counsel

Congress’ power of the purse

In Consumer Financial Protection Bureau v. Community Financial Services Association, the Supreme Court will decide whether the CFPB’s novel and unprecedented structure — which grants the agency regulatory authority over a wide swath of the national economy with the power to self-fund its operations outside of the normal appropriations process — violates the Constitution’s Appropriations Clause.

At AFP, we’re big fans of the Constitution.

It establishes a system of checks and balances that ensures that no single branch of government gains unchecked power — safeguarding the rights and liberties of all people.

And former Solicitor General Noel Francisco observed on Tuesday, October 3rd, at oral argument, “One of Congress’s most important checks on executive power is its power of the purse. That’s why Alexander Hamilton said that the unification of sword and purse was the very definition of tyranny.”

As AFPF’s amicus brief explains, that’s what is at stake in this case.

It’s not about the merits of CFPB. It’s about ensuring that Congress doesn’t shirk its duties by passing off its exclusive funding authority to unelected officials.

The Congress that created the CFPB intended for it to operate as a fully independent fourth branch of government that would not answer to future Congresses. In so doing, the Congress that enacted Dodd-Frank abdicated its appropriations role by unconstitutionally transferring its exclusive power of the purse to the agency itself.

This union of the powers of the purse and sword within this unprecedented administrative agency — which exercises legislative, executive, and judicial powers — runs roughshod over of the system of checks and balances the Framers enshrined in the Constitution.

This unprecedented arrangement is both dangerous for our republic and unconstitutional. Congress cannot transfer its power of the purse to unelected officials. And if allowed to stand, the CFPB’s funding structure will provide a blueprint for other more powerful agencies like the FBI and EPA to further unshackle themselves from oversight by the People’s elected representatives in Congress.

If Congress wants the CFPB to continue its efforts to protect consumers, it must properly fund — and thereby meaningfully oversee — the agency’s activities through the regular appropriations process, just like other agencies.

Michael Pepson, AFPF Regulatory Counsel

As you’ll see from the cases above, not all civil liberties cases are focused on the Bill of Rights. As a former Justice of the Supreme Court argued:

“The foundation of our freedom is not based in the Bill of Rights. That was an afterthought. Every tinpot dictator has a Bill of Rights which he casually ignores. What was debated in 1787 and what ensures our freedom is our STRUCTURE of government which holds each branch (and in turn by its people) to account. Have no illusions. Structure dictates destiny.” – Antonin Scalia, J

The Supreme Court has a lot on its plate this year, both with cases directly addressing the First Amendment and those that ensure the checks and balances that are the true guarantee of that freedom and all others.


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