THERE IS AN INTERESTING U.S. Supreme Court case that has received little publicity, but which was covered in some detail in theconservativeteehouse.com (CT), to the point a reporter was subpoenaed for writing about the underlying facts. The case, X Corp. v. Merrick Garland, involves governmental control over social media, and originated years ago in the Obama administration. It eventually wound its way to the U.S. Supreme Court, which on Monday declined to review the lower courts based on traditional deference afforded the executive branch in matters of military and national security. The Writ of Certiorari is here.
There are oodles of precedential case law to support the Court’s declination to review, but CT writes that Deep State law enforcement and intelligence agencies, such as DOJ, FBI, and DHS, have been weaponized to use this deference as a tool of lawfare against unwitting Americans in order to control or limit their thoughts, speech, and behaviors. It almost morphs these Deep State agencies into an unconstitutional Fourth Branch of Government. (I concur with CT’s position.)
Some background: In 2014, during Obama’s reign, Twitter (now known as X) sued the federal government after it was prevented from simply disclosing the number of requests made by officials for user information that were allegedly related to ‘national security.’ Twitter wanted the number and frequency of such government requests to be published in its biannual online ‘Transparency Report.’ And it being blocked from doing so by the government unconstitutionally restrained its speech, Twitter asserted in its lawsuit. The government had also placed strict controls or ‘guidance’ on what Twitter could publish on its platform or give to researchers.
A federal district court ruled in 2020 that the government’s classification of this information was justified and that “no more narrow tailoring of the restrictions can be made.” The case went to a three-judge panel at the Ninth Circuit Court of Appeals, which affirmed the lower court’s decision, again, stating the redactions made by the government were as narrowly tailored as they could be. Some pleadings in the case have been filed under seal because of the ‘national security’ sensitivity involved, but it can be deduced the appeals court believed that the disclosure of the number and frequency of requests could somehow tip off foreign enemies of what the government was aware/not aware of and that could somehow give them unspecified advantages.
This sounds like a very strained rationale. The Surveillance State and weaponization of law enforcement and intelligence agencies became particularly prevalent under Obama and then-A.G. Eric Holder. The deference the judiciary gives isn’t one some Americans are willing to give after The Snowden Revelations of 2013 or The Twitter Files of 2023, or all that came in between. One might perhaps be more understanding if government had an established pattern of integrity in conducting its business. It too often doesn’t. Over-classification is one thing; weaponizing the process, another thing altogether. It’s why Warrant Canaries had to be hatched.