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Last week, the Supreme Court in Murthy v. Missouri hammered home the distressing conclusion that, under the court’s doctrines, the First Amendment is for all practical purposes unenforceable against large-scale government censorship. The decision is a strong contender to be the worst speech decision in the court’s history.(I must confess a personal interest in all of this: My civil rights organization, the New Civil Liberties Alliance, represented individual plaintiffs in Murthy.)Government once had to prove to a judge and jury that a speaker’s words were illegal. Now, instead, the speaker must prove that the government censored him.All along, there were some risks. As I pointed out in an article called “Courting Censorship,” Supreme Court doctrine has permitted and thereby invited the federal government to orchestrate massive censorship through the social media platforms. The Murthy case, unfortunately, confirms the perils of the court’s doctrines.One danger was that the court would try to weasel out of reaching a substantive decision. Months before Murthy was argued, there was reason to fear that the court would try to duck the speech issue by disposing of the case on standing.Indeed, in its opinion, the court denied that the plaintiffs had standing by inventing what Justice Samuel Alito calls “a new and heightened standard” of traceability — a standard so onerous that, if the court adheres to it in other cases, almost no one will be able to sue. It is sufficiently unrealistic that the court won’t stick to it in future cases.The “evidence was more than sufficient to establish” at least one plaintiff’s “standing to sue,” and consequently, as Alito’s dissent pointed out, “We are obligated to tackle the free speech issue.” Regrettably, the court, however, again in Alito’s words, “shirks that duty and thus permits ... this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.” The case gives a green light for the government to engage in further censorship.A second problem was doctrinal. The Supreme Court has developed doctrine that encourages government to think it “can censor Americans through private entities as long as it is not too coercive.” Accordingly, with painful predictability, the oral argument in Murthy focused on whether there had been government coercion.The implications were not lost on the government. Although it had slowed down its censorship machine during litigation, it revved it up after the court’s hearing emphasized coercion. As put by Matt Taibbi, “The FBI and the Department of Homeland Security reportedly resumed contact with Internet platforms after oral arguments in this case in March led them to expect a favorable ruling.”The First Amendment, however, says nothing about coercion. On the contrary, it distinguishes between “abridging” the freedom of speech and “prohibiting” the free exercise of religion. As I have explained in great detail, the amendment thereby makes clear that the Constitution’s standard for a speech violation is abridging, that is, reducing, the freedom of speech, not coercion. A mere reduction of the freedom violates the First Amendment.But the court in Murthy didn’t recognize the significance of the word “abridging.” This matters in part for the standing question. It’s much more difficult to show that the plaintiffs’ injuries are traceable to government coercion than to show that they are traceable to government abridging of the freedom of speech. More substantively, if the court had recognized the First Amendment’s word “abridging,” it would have clarified to the government that it can’t use evasions to get away with censorship.Other doctrinal disasters included the court’s casual indifference to listeners’ or readers’ rights — the right of speakers to hear the speech of others. The court treated such rights as if they were independent of the rights of speakers and therefore concluded that they would broadly invite everyone to sue the government.But listeners’ rights are most clearly based in the First Amendment when they are understood as the right of speakers to hear the speech of others, as this is essential for speakers to formulate and refine their own speech. The right of speakers to hear what others say is, therefore, the core of listeners’ rights. From this modest understanding of listeners’ rights, the plaintiffs’ rights as listeners should have been understood as part of their rights as speakers — an analysis that would’ve avoided hyperbolical judicial fears of permitting everyone to sue.The court’s disgraceful reasoning suggests that when the government censors a vast number of Americans, we lose our right of redress.The court’s concern that a recognition of listeners’ rights would open the courts to too many claimants is especially disturbing when the government has censored millions upon millions of posts with the primary goal of suppressing what the American people can hear or read. When the most massive censorship in American history prevents Americans from learning often true opinion on matters of crucial public interest, it should be no surprise that there are many claimants. The court’s disgraceful reasoning suggests that when the government censors a vast number of Americans, we lose our right of redress.The greatest danger comes from the court’s tolerance of the sub-administrative power that the government uses to corral private parties into becoming instruments of control. Administrative regulation ideally runs through notice-and-comment rulemaking. In contrast, sub-administrative regulation works through informal persuasion, including subtle threats, regulatory hassle, and illicit inducements. By such means, the government can get the private platforms to carry out government-orchestrated censorship of their users.The federal government once had no such sub-administrative power, and it therefore had little control over speech. It could punish speakers only through criminal prosecutions — that is, by going to court and showing that the defendants’ speech violated the criminal law. Now, however, federal officials can subtly get the platforms to suppress speech — often covertly, so an individual won’t even know he is being suppressed. Thus, whereas the government traditionally could only punish the individual, it now can make his speech disappear.Even worse, the court’s tolerance of this sub-administrative privatization of censorship reverses the burden of proof. Government once had to prove to a judge and jury that a speaker’s words were illegal. Now, instead, the speaker must prove that the government censored him.What’s more, there is no effective remedy. The court’s qualified immunity doctrine makes it nearly impossible for censored individuals to get damages for past censorship. And the obstacles to getting an injunction mean that it’s nearly impossible to stop future censorship. For example, the government can claim, as it did in Murthy, that it’s no longer censoring the affected individual. Then, poof! The possibility of an injunction disappears. Moreover, because of the court’s indifference to listeners’ rights — even to the right of speakers to hear the speech of others, an injunction can protect only a handful of individuals; it can’t stop the government’s massive censorship of vast numbers of Americans.The court thus puts Americans affected by censorship in an unenviable position. It reverses the burden of proof and denies Americans any effective remedy.So, for multiple reasons, Murthy is probably the worst speech decision in American history. In the face of the most sweeping censorship in American history, the decision fails to recognize either the realities of the censorship or the constitutional barriers to it. In practical terms, the decision invites continuing federal censorship on social media platforms. It thereby nearly guarantees that yet another election cycle will be compromised by government censorship and condemns a hitherto free society to the specter of mental servitude.Editor’s note: This article was originally published by RealClearPolitics and made available via RealClearWire.

Many on the right claim that Democrats knew Joe Biden would bomb in last week’s presidential debate and scheduled it early to remove him from contention. This perspective is tempting and understandable — and completely wrong. Most of the people closest to Biden who would have been making these decisions are Democratic Party apparatchiks. More specifically, they are Biden apparatchiks. They wouldn’t enjoy anywhere near the same power and access with his successor. Biden’s loyalists forgot how bad he would look to normal people left one-to-one with no support network. For better or worse, their fates are tied to Biden. They had the debate early because they knew that while Biden was not in great shape, they had drunk the Kool-Aid and convinced themselves, at least to some degree, of the lies they have been telling for years to the American people about his mental state. They thought that if they worked with the most favorable rules, on the most favorable network with the most favorable moderators, and gave Biden a full week to prep, they would be able to get through it, and even if they didn't “win,” it would be far enough from the election that voters would ignore a mediocre performance. They were not counting on what a disaster it would be to have Biden fully unmasked up against a competent and energetic opponent. Yes, Biden's performance was such a disaster that it's tempting to think "this was all planned," but that's only if you ignore the levels of self-deception, lying, and magical thinking that have dominated the Democratic Party for years now. That's what was exposed on the debate stage last Thursday night. Let me expand on this a bit further based on my own personal experience. First, I should say I have a bias against conspiracy theories — not that conspiracies don’t exist (they absolutely do) but that conspiracy theorizing tends to be behavior from people outside a system that they are frustrated that they have no control over. It’s not a winner’s way of looking at the world. At a human level I’m sympathetic, but at a practical level, it’s a form of taking out frustration, and it rarely leads to the political results we want. At the very least, before we grab on to a conspiracy theory, we should see if we can find a non-conspiratorial take that would explain the facts better. Second, in an earlier time in my career, I spent almost a decade working very closely with the late Secretary of State George Shultz at Stanford University’s Hoover Institution. At the time I joined Hoover, Shultz was 88. By the time I left, he was 98. So I have ample personal experience in working with an aging principal. Shultz was a remarkable man. Shultz was one of two people in U.S. history to hold four Cabinet positions. Apart from secretary of state for most of Ronald Reagan’s two terms in office, he had been a power player from the days when he had been a member of the Council of Economic Advisors in the first Eisenhower administration to the day he died at age 100. I was privileged to work with him, and I learned a tremendous amount from him. Diana Walker/Getty Images Shultz was a super-ager in many ways. President Obama asked him to lead the U.S. delegation to Margaret Thatcher’s funeral — he had worked closely with Thatcher while he was secretary of state. Shultz took a cross-country flight from California to D.C. and then hopped immediately on a military plane that took him and the rest of the delegation to the U.K., where he had 45 minutes of downtime before having to head to 10 Downing Street to pass on his condolences in person to the prime minster. He was 93. It was a schedule that could have taxed a man decades younger, yet Shultz handled it with aplomb. He also continued writing and speaking right up until the day he died. Although Shultz often had the energy and acuity of a man decades younger, he was not immune to Father Time. I obviously haven’t spent time with Biden, but I would imagine that Shultz’s abilities in his mid-90s were likely at least equal to Biden’s in his early 80s. My job when I worked with him was to put him in situations where he would be in the best position to succeed. And he almost invariably did succeed. That meant making sure we were writing on the right topics, briefing him extensively before big meetings, making sure the topics were moved to subjects he was familiar with, and making sure that he was meeting with the right people in ways that would advance our agenda. In the earlier days, Shultz had to rely less on this sort of prep, but as he got into his mid- to later 90s, it was more important. Now Secretary Shultz had a support system, including multiple administrative staff members, to help him, but the sort of assistance he got would be trivial compared to what Biden has as president of the United States. As president, everything Biden does is choreographed; every action he takes is the result of extensive pre-briefing. Every day, Biden has thousands of people working overtime to overcome his decline and hide his shortcomings. Like Shultz as he moved into his mid- to late 90s, Biden likely has good days and bad days. On a good day, I am sure Biden can offer reasonably acute advice on issues, at least by his lights, based on his many decades of experience. On his bad days, much less so. But when you’re in the reality distortion field of the White House, it’s easy to pretend that the bad days aren’t really so bad, especially when the media is working overtime to cover for you. This is why the Biden camp didn’t realize that they were walking into a buzz saw when they agreed to debate Trump. Because Shultz was absolutely capable of long stretches of acuity and sagacity well into his mid- to late 90s, it would have been easy for me to overestimate how well he might have done in a true rough-and-tumble debate at that age. And I imagine something similar went on with the longtime Biden loyalists who made up his senior advisers. They like Biden, they are loyal to Biden, and they knew that he could often do at least minimally acceptably with the entire machinery of government out there supporting him. As a result, they forgot how bad he would look to normal people left one-to-one with no support network. Secretary Shultz was still a significant player in national and global affairs to his dying day. But if he wasn’t doing as well on a given day, it was no big deal. Officially, he was “retired,” and you could take advantage of the many good days without worrying so much about occasional bad days. But Joe Biden is the president of the United States. We need him to be at his best every day. And he’s clearly not capable of it. But the members of his inner circle were in denial of that, and that’s why they have put themselves, and America, in a catastrophic position. Editor’s note: A version of this article originally appeared at Jeremy Carl’s Substack, “The Course of Empire.”

Joe Biden’s debate performance isn’t about politics anymore. It’s about the critical state of our national security. This is the weakest our president has ever appeared. Never in my lifetime have I seen a U.S. president appear so feeble and incapable. If I'm Vladimir Putin, I am storming Europe. If I am Xi Jinping, I am invading Taiwan — right now. I remember when Ronald Reagan was in the hospital after being shot. That was a very nerve-wracking time because, for a moment, we didn't have the president in charge. He transferred his presidential powers to the vice president while he was in the hospital at the beginning. It was terrifying because you knew the world was watching. We’re in trouble, not merely because of Joe Biden. We’re in trouble because people are not recognizing the danger that is right in front of us. Our enemies are always looking for moments of weakness. During the debate, it confirmed to our enemies that we’ve endured nearly four years of weakness.Three categories of people watched last week’s debate. There were those who believed the media's claim that Biden's senility was just a Republican "cheap fake" and that the president has never been sharper. This group is probably in shock after seeing his debate performance. For those in this group, here's what you should be thinking right now: I cannot trust any of my trusted sources because they all lied to me. Then, there are those who participated in the con. Anybody who has talked to Biden, has seen him up close and personal, and has had conversations with him is culpable. Those of you who ran the con in the press, the White House, and the Democratic Party, shame on you! You have put our country in grave danger. Then, there are those who are responding to the debate by saying, "The Democratic Party is in trouble. What are we going to do for the election? Can we get him to step down before the convention? If we do, how do we pick a new candidate?" People in the first two groups can fall in this category. But these are political questions. We need to step away from politics and the election for a second. We need to talk about the state of our country. We are now facing nuclear threats that we haven't faced since the 1960s. Even though the 1960s was a time of great fear and uncertainty with the Soviet Union, we had John F. Kennedy. He was in so much pain, unbeknownst to the American people. The doctors were jacking him up on drugs. But at least he was sane and sharp!In 2024, we have Joe Biden. Do you realize the responsibility he carries to determine your fate in a national emergency? As president, he would have seven minutes to decide how to respond if any of our global enemies launched a nuclear attack. If North Korea launched a hypersonic weapon at us, he would have less than seven minutes to decide what to do. Our military wouldn't even have enough time to verify if it was a nuke or not. They open the football and take out what's called the "Black Book of Death." That's how serious this is! The president has to look through it and decide, "This city, this system, these ships, these silos will be saved." Then, the guy who is with the football acts as a kind of actuary. He takes the president's selection and says, "Mr. President, this is going to result in this many deaths." Take this as a hypothetical example. Let's assume the president decides to retaliate against North Korea if it launches a ballistic missile at the United States. The "actuary" would point out that some of those targeted North Korean cities are up against the border of China. That means that radiation will blow into China, killing an additional 250,000 Chinese. The Chinese will look at that as aggression, and they may launch their own nuclear weapons at us. The radiation may make its way as far north as Russia, and that country will likely retaliate. The "actuary" will explain all of this to the president and ask, "Is this your selection, sir?" Do you trust Joe Biden with that responsibility, regardless of your political affiliation?I am so angry that I haven't heard a single person on television or in the political realm talk about the state of the country! They're all talking about the election: "How do we replace Biden before the convention? How do we get him off the ticket?"Get him off the ticket? I'm singularly concerned with how we get this man away from the football! Do you know what our enemies are thinking? If there were any opportunity to take advantage of the United States' weakness, it's now. Our country is in more danger than at any point possibly in my lifetime — and I grew up during the Cold War. We are weak, and the world knows it. Our enemies know it. They are threatening nuclear weapons, and we cannot have this man with the "black book of death" and the button!Does anyone understand what we saw during the debate? You didn't see a presidential candidate. You saw the current president of the United States! That should terrify you regardless of your political affiliation. If you are on the right and were celebrating after the debate because you thought, "This is going to be great for Donald Trump," be careful what you wish for. If you are somebody on the left thinking, "Oh well, this just played into the caricature that the right was trying to build about Biden," do you think we want our country to be destroyed? Does any American want our president to look like that? What is wrong with us?We're in trouble, not merely because of Joe Biden. We’re in trouble because people are not recognizing the danger that is right in front of us. I've been saying a lot lately, "May God save the republic." He cannot do what we won't participate in. We must get this man out of office.Want more from Glenn Beck? Get Glenn's FREE email newsletter with his latest insights, top stories, show prep, and more delivered to your inbox.

The cringe is strong with Mark Hamill.The “Star Wars” icon watched enough of the Biden-Trump debate to know all the Dark Brandon memes on X can’t camouflage the truth. The commander in chief’s mental decline isn’t a “cheap fake” attack. It’s real.And Hamill just doesn’t care.While Jane Fonda teared up watching President Joe Biden decompose and director Rob Reiner screamed at his screen, Hamill refused to face reality.One off night doesn't change the fact that @JoeBiden is the most legislatively successful @POTUS in our lifetime. One off night also doesn't change the fact that the former guy is a convicted felon, serial liar & adjudicated rapist who is unfit for ANY office. Period.You might say Hamill carried on in the grand Jill Biden tradition. Apologies! The Dr. Jill Biden tradition.Buckwheat butthurtEddie Murphy — genius, stand-up legend, Oscar nominee ... snowflake?The 63-year-old is back to his signature franchise with this week’s “Beverly Hills Cop: Axel F” on Netflix. That means he’s making the press rounds and, in the process, sharing why he’s still sore over a joke told 29 years ago.“Saturday Night Live’s” "Hollywood Minute" skewered everyone without mercy in the 1990s, courtesy of the King of Snark, David Spade. Murphy’s 1995 dud “Vampire in Brooklyn” had just underwhelmed at the box office, giving Spade fodder for this comedic kill shot. “Look, children, it’s a falling star. Make a wish!” as an image of Murphy graced the screening.Ouch. No, really, ouch! (And funny!)Except not to Murphy, who is still talking about it to journalists. The bit was “kind of racist,” too, he argued to a New York Times scribe.Has Eddie Murphy ever watched an Eddie Murphy stand-up special? The dude takes no prisoners. Why so thin-skinned when the shoe is on the other foot?Maybe he’ll get over it on the gag’s 30th anniversary in 2025.'Jackpot!' a bust?We miss big-screen comedies. Still.This week, Murphy’s fourth “Cop” movie opens on Netflix, not a theater near you. Next month, one of the funniest directors returns with an all-new comedy, and it’s debuting on Prime Video.“Jackpot!” teams Awkwafina and John Cena, no comedy slouches, in a dystopian tale of a lottery winner running for her life. Literally.It’s 2030 in Los Angeles, and a new rule says lottery winners can keep their millions, but if someone kills them within the first 24 hours, the murderer gets that cash.It’s a sly attack on L.A.’s “soft on crime” policies and Biden’s pathetic economy, right?Not according to the trailer. And given director Paul Feig’s progressive politics, there’s little hope those issues creep into the frame.Feig previously gave us “Spy” and “Bridesmaids,” and he was a critical force behind the classic TV comedy “Freaks and Geeks.” He hasn’t been the same since his “Lady Ghostbusters” reboot fizzled with fans.Neither are we.Maybe Feig and company can tap into the zeitgeist for a return to form — or there’s a reason it’s skipping theaters for the streaming world.Colbert's despairThe only people more frazzled by Biden’s horrific debate performance? The writers at Stephen Colbert’s “The Late Show.” Let’s hope they’ve got plenty of boxed wine within reach.The far-left showcase has spent three years protecting the president from himself, a balancing act that found Colbert spinning the special counsel’s report so hard the earth nearly came off its axis. When the Wall Street Journal noted Biden’s obvious decline, Colbert trashed the paper like it was the Weekly World News.Now what? Can Colbert ignore the debate’s fallout? Would he repeat the media’s heel pivot and say Biden must be replaced atop the Democratic ticket (without apologizing for his spin cycle)?We may never know.“The Late Show” is in reruns until July 8. Plenty can change between now and then. Heck, Colbert may have a whole new set of DNC talking points to read from by then. President Kamala Harris? A shocking plan B, C, or D?Just know we won’t get two things on July 8: laughs or an apology.

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