WaPo columnist says public ‘shaming’ is the only way to ‘rein in’ conservative judges

As the Supreme Court prepares to hear two separate cases that could impact free speech on the internet, leftists are renewing their calls for the harassment of conservative judges to “chasten them toward moderate” opinions.

This week, the high court will be hearing oral arguments in the cases of Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh, which both relate to acts of terrorism believed to have been facilitated through incitement and recruitment conducted on social media platforms.

In the former, the family of Nohemi Gonzalez brought suit against YouTube parent owner Google accusing the platform of permitting the Islamic State to post videos that led to the 23-year-old woman’s November 2015 death in Paris, France along with nearly 130 other innocents killed by extremist attacks. The cases mark the first time that the infamous Section 230 of the 1996 Communications Decency Act, drawing protective distinctions between publishers and platforms, will be reviewed by the Supreme Court

In the latter, similar concerns of incitement were raised against Twitter, Facebook and Google related to the death of Nawras Alassaf, among 39 victims killed at an Istanbul nightclub in 2017 during an attack attributed to ISIS, as the question was presented whether the platforms held any liability under Section 2333 of the Anti-Terrorism Act, making them potentially guilty of “aiding and abetting” the attack according to federal law.

With the high court currently considered to have a conservative tilt 5-4, though Chief Justice John Roberts has consistently proven a wild card, those “Republican” justices’ leanings didn’t exactly hint at how they might rule on these cases.

In 2021, Justice Clarence Thomas wrote, “Applying old doctrines to new digital platforms is rarely straightforward. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

Google’s general counsel Halimah Delaine Prado lamented any changes to Section 230 that would burden her client with liability, writing in blog post, “A decision undermining Section 230 would make websites either remove potentially controversial material or shut their eyes to objectionable content to avoid knowledge of it. You would be left with a forced choice between overly curated mainstream sites or fringe sites flooded with objectionable content.”

Both parties wish to see changes made to Section 230 and in a Sunday column for The Washington Post, Perry Bacon seemed to be pushing in favor of limiting the liability of extremist speech and protecting the status quo by encouraging activists to get out and harass the justices away from conservative rulings.

“America’s judiciary is dominated by conservatives issuing an endless stream of rulings that help corporations, the rich and the bigoted while hurting working-class people, women and minorities in particular. Biden’s lower-court appointees must follow the precedents set by the Republican-dominated U.S. Supreme Court or their rulings will be overturned,” he argued. “Meanwhile, the high court usually allows very-right-wing opinions issued by lower-level conservative judges to remain in place. So at least in the short term, there is only one real option to rein in America’s overly conservative judiciary: shame.”

“Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges,” Bacon encouraged. “A sustained campaign of condemnation isn’t going to push these judges to write liberal opinions, but it could chasten them toward moderate ones.”

The columnist’s viewpoint harkened back to the weeks of protests that followed the lead of Justice Samuel Alito’s draft opinion in the case of Dobbs v. Jackson Women’s Health Organization that, after violent extremism against pro-life facilities and an alleged assassination attempt against Justice Brett Kavanaugh, led to the overturning of Roe v. Wade.

“But the real goal is to make Republican judges less conservative in their rulings now,” Bacon stated impatiently to efforts of court-packing and term limits that would realign the current political dynamic of the court. “Why would that happen? Because many judges care deeply about their reputations. They want to be seen more as umpires than politicians. I’m not guessing — several Republican-appointed Supreme Court justices have complained about being case as Republican partisans.”

“Roberts and his colleagues are acting like Republicans, not judges,” he added, “and Democrats should say that loudly and often.”

Whatever the Supreme Court decides on the cases, with rulings likely to come nearer to the end of the current term in June, reforming Section 230 is a matter for Congress to decide.


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