Post #3

HELLO 2025! WHAT MAKES ME CRAZY? TRY THIS ON FOR SIZE: SCOTUS CHIEF JUSTICE JOHN ROBERTS LEAKS HIS TIKTOK DECISION AND PUSHES TO GIVE TRUMP POWER TO CENSOR ANYTHING AND ANYONE AT ANY TIME.

You can't say I didn't warn you.

On New Year's Eve 2024, United States Supreme Court Chief Justice John Roberts issued his annual report on the state of the judiciary.

My opinions on this material are as follow in all the balance of this Post:

The Chief Justice's "report" is a self-serving and frightened scolding of those who would dare criticize judges and courts and particularly SCOTUS.

Worse, the Chief Justice commits the ultimate cardinal sin and judicial ethics violation by not only commenting on a current open SCOTUS case, but by stating his opinion of the legal issues in the case even before oral arguments have begun.

The case? TikTok. The one I warned you about in my last post, a case that will decide the future of SCOTUS itself.

As we know, the TikTok case (TikTok v. Garland) results from Congress passing (and President Biden signing) a law called the "Protecting Americans From Foreign Adversary-Controlled Applications Act".

This is a new law specifically intended to require TikTok to lose its ownership and control ties to China and Chinese citizens or else the US will pull the plug on TikTok in January 2025.

To fight the law, TikTok primarily raises First Amendment issues on behalf of its users, asserting that denying them the use of the app will curtail their constitutionally-protected freedom of expression. TikTok further attacks the Act itself as unconstitutional.

In response, the Government defends the law by primarily citing to national security interests, as Congress predicated the law on these exact grounds, a familiar SCOTUS-precedent in many situations.

The case had been expedited to SCOTUS by provisions in the law itself which allowed the case to jump past a trial court, straight to appellate review, and then to SCOTUS. The decision at the appellate level was in the Government's favor. SCOTUS then required briefs be filed in December 2024, with oral arguments set for January 10 2025, and a final decision promised by January 19 2025.

But, based on Chief Justice Roberts' comments in his annual report just now, it certainly seems his mind is already made up plenty early, and he means to reach far beyond TikTok by writing laws through court decisions that award new power and prominence both to the President and to SCOTUS itself.

Here is what Mr. Roberts just wrote in his report:

"In recent years, hostile foreign state actors have accelerated their efforts to attack all branches of our government, including the judiciary. In some instances, these outside agents feed false information into the marketplace of ideas. For example, bots distort judicial decisions, using fake or exaggerated narratives to foment discord within our democracy. In other cases, hackers steal information -- often confidential and highly sensitive -- for nefarious purposes. Either way, because these actors distort our judicial system in ways that compromise the public's confidence in our processes and outcomes, we must as a Nation publicize the risks and take all appropriate measures to stop them."

What the Chief Justice is saying -- over and over again in his report's nine pages of argument -- is that because, as far as he is concerned, there is NO legitimate basis for criticism of the judiciary generally and SCOTUS in particular, therefor any and all criticism of the judiciary is necessarily based on false information and misinformation, and all that malign information first comes from foreign state actors.

And what case is in front of Chief Justice Roberts at this minute?

Answer: THE case and the law where Congress has attempted to solve the propaganda problem that Mr. Roberts describes, by the "Protecting Americans From Foreign Adversary-Controlled Applications Act" which is shutting down TikTok and whatever other media forums post and re-post anti-SCOTUS and anti-US Government material.

So, have not the slightest doubt that Mr. Roberts is finding in favor of this law, voting for the government and against TikTok when the case is officially decided as of January 19 2025.

The open question is how far the Chief Justice intends to expand his ruling within the TikTok case decision, how far he wants to see the law reach out to any and all speech he considers to be anti-judiciary and anti-SCOTUS.

This too he seems to answer in his report:

(1) Let's start with Mr. Roberts' "facts" and reasoning. He insists on blaming foreign actors who he says created the anti-judiciary speech that he means to see curtailed. Does this mean that people who believe this speech after hearing it can or cannot be stopped from re-posting or posting it in their own words? What about people who re-post or post it but don't know for sure whether they believe it or not?

Lots and lots of media re-posts and posts are by people who have little idea what they are actually posting, many freely admit they post what they've heard to see how people will respond, whether people will tell them it is right or it is false.

And, of course, if TikTok gets shut down, then, yes, both Mr. Roberts' foreign actors and the American re-posters and posters all get shut down.

So how do all these consequences fit in to Mr. Roberts' claim that there are "appropriate measures" by which false information propagated by foreign actors in social media can be legally silenced? Let us once again see what answers the Chief Justice hints at in his report.

(2) One of the most telling observations I have is that, despite the undisputed reality that Donald Trump has spent the last ten years loudly attacking any and every judge who has ruled against him in any case, attacking judges and their families and their clerks with misinformation, knowingly false information, and overt racism and other bias, nonetheless Chief Justice Roberts makes literally no mention of Mr. Trump's place in the ever-growing attacks on the judiciary. Instead, Mr. Roberts blames foreign state actors as both origin and nexus for hate speech that is not protected by the First Amendment.

Hmmm.

Now you may begin to conclude that, in order to continue to attempt to ingratiate himself with Mr. Trump, the Chief Justice wants to inoculate Mr. Trump's speech even as Mr. Trump's enemies can be legally silenced.

(3) Worse, Mr. Roberts singles out Judge Aileen Cannon in Florida as a jurist who has been terribly wronged by postings and reporting. Yes, the very Judge Cannon whose incompetence and pro-Trump bias in the Trump documents case led her to being overruled dramatically by the appellate courts who upbraided her up one side and down the other -- YOUCH!

But Mr. Roberts tosses the considered and brilliant opinions and analyses of the appellate jurists to the trash heap in order to defend Mr. Trump's favored Judge Cannon, who is quite likely to some day get her quid pro quo as Mr. Trump's next appointment to SCOTUS.

Where is Mr. Roberts' attack on Mr. Trump's hate rhetoric against Judge Curiel, Judge Kaplan, Judge Engoron, and Judge Merchan, the judges who oversaw cases in which Mr. Trump was a losing defendant?

Once again, the Chief Justice seems to say that he has decided that anything Mr. Trump says is protected speech; therefore Mr. Roberts is forced into tortured logic to want to withhold First Amendment protection to social media posters who are anti-judiciary even as he protects a man who does not go a day without attacking the judiciary and whipping up whatever anti-judiciary frenzy he can.

But by what legal and practical reasoning can Mr. Roberts achieve his desires? I know this post is long but please keep reading -- this matter is critically important to us all.

(4) If Chief Justice Roberts says it is okay to limit the false speech of foreign actors that leads to anti-judicial and anti-government speech by others, how do we determine what is "false" in political speech? That is, what sort of falsehoods trigger speech limits? And is falsity enough to trigger limits?

Over the decades SCOTUS has often faced First Amendment cases and the Justices have wrestled endlessly over the simple notion that SCOTUS Justice Oliver Wendell Holmes once refined to: “{T}he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

This notion -- that there are limits to free speech, limits as to time and place based on content, meaning, intention, and consequences -- ultimately evolved into various SCOTUS-generated "tests" that a legislature or court must use to craft and execute limits, and these considerations are what Chief Justice Roberts is loosely citing to in his report as he tries for a simpler cleaner solution.

(5) Which means the Chief Justice is suggesting quite strenuously that anything said by an agent of a foreign power that is our "enemy" is unprotected speech. No "tests" are necessary. The First Amendment does not apply to our enemies.

And so that makes for an easy TikTok case decision, because Congress would have the right to require the severing of any medium's tie to a foreign enemy, with "enemy" being any country that has publicly or privately intended to attack us or actually attacked us in any way, whether through force or subterfuge. Of course even our allies "attack" us by spying on us. And the more we examine what an "enemy" is, the less possible it is for us to identify one country but not another. Strange bedfellows, indeed.

The best we could do is use a list provided by US Intelligence, with input from Congress. And guess where that leads. Yup. It leaves it to the President to be the final arbiter as to who our enemies are and therefore whose speech is not protected by the First Amendment even as his is always protected.

All of which fits nicely into Mr. Roberts' long-stated belief in expanding executive power, all the way back to his days as a legal counsel to President Reagan. Please pinch me because I hope I am dreaming, but this nightmare is already deep into its execution.

(6) The foregoing considerations ostensibly give us a society where conspiracy theory and hate websites and media forums are protected regardless of what speech they deliver, while any entity that is tied to a foreign enemy can be shut down. This means that Mr. Roberts will first make TikTok's First Amendment claims moot. He will maintain that killing TikTok is a national security matter and nothing more. Easy peasy. Falls under various Constitutional provisions and Congressional laws and Executive Power to define and name our enemies.

(7) But even that will not go far enough to satisfy Chief Justice Roberts' need for more constitutional architecture to make his policy beliefs final and free of question or litigation. Mr. Roberts wants to declare all anti-judiciary and particularly anti-SCOTUS speech as unprotected, regardless of source (no foreign enemies needed after all), EXCEPT when it comes direct from Mr. Trump per his Presidential power, and therefore also extends to his Executive Branch delegates and his lawyers.

Capiche?

No one gets to bash SCOTUS and the courts EXCEPT a President and their direct minions, but Mr. Roberts anticipates that Mr. Trump will relax his attacks on the courts in exchange for this new and vast "Presidential power per se" to censor, which also nicely falls within the new SCOTUS-expanded Presidential immunity.

And, to answer the question we posed earlier: there will be no need to prove the speech as false before it can be censored, the President simply has to declare the content or the speaker/writer as dangerous to national security, yet even if the President is wrong or fails to justify the declaration, the President would be immune from ever being held to account for it.

Just the way every dictator silences opposition, except here there would be constitutional authority to back the play.

(8) So how does Mr. Roberts intend to bring all this to pass?

First, know that SCOTUS is supposed to decide all cases on the most narrow grounds possible per the factual findings and issues presented at the lower court. But the Roberts' iteration of SCOTUS has become notorious for using any case to pursue larger agendas sometimes only loosely tied to the case facts, and Justices like Alito and Thomas and Roberts are only too happy to opine about other cases and outside issues within the decision of an instant case.

So the TikTok case is Mr. Roberts' current opportunity to try to deliver the balance of his planned expansion of Presidential power to censorship. The expedited appeals to SCOTUS under the TikTok law jumped over the usual lower courts having to make relevant findings, and this provides SCOTUS a unique opportunity to be more intrusive and wide-ranging in all aspects of the case.

The Chief Justice would begin by trying to horse-trade with the other Justices for all to agree that freedom of speech is a relevant issue in the case. Remember: that issue is not actually needed to resolve the case. The law and the ruling could be upheld simply on the basis of national security needs, per various constitutional provisions, laws, and case precedent.

If Mr. Roberts gets consensus that there are First Amendment speech issues in TikTok then he would propose a new test when it comes to evaluating anti-government and anti-judiciary speech in social media.

Let's call it "the poison well" test.

It would require a lower court -- the fact-finding court -- to determine whether foreign propaganda and/or falsehoods and/or hate speech and/or threats/intimidation permeated a social media forum or app such that it was no longer a true "marketplace of ideas".

This "poisoning of the well" could be the result of foreign actors or other enemies of the state or the algorithms of the forum/app itself creating a contaminated echo chamber or "monopoly of hate". Meaning the forum or app is not actually providing a place for free speech because it is limiting posts and feeds to falsehoods and only certain concomitant positions.

Therefore no First Amendment freedom of speech protections apply, and the forum or app can be censored or deleted or its algorithm revised by law or the courts or Presidential decision.

Almost seems a sensible notion somehow, except one person's poison is another person's martini (straight, up, two olives.) Certainly a viable possibility as a natural extension of previous SCOTUS precedent. So, as with the Presidential immunity case, the poisoned well test is a concoction that a majority of SCOTUS might well agree to. Chief Justice Roberts would write the majority decision and he could fill it up with musings and ruminations on the test, just as he did with the Presidential immunity considerations for the lower court to try to actually define and implement. The TikTok case would be sent down to a trial court that SCOTUS would choose. Facts would be presented, findings made, and the case would work its way back to SCOTUS eventually for the Justices to see how well their poisoned well test worked in reality rather than in SCOTUS chambers.

However, if the Justices would not agree to all this to begin with, TikTok would turn simply on national security issues, and the law would be upheld. At that point Mr. Roberts would be free to posit his poisoned well test in the dicta of his written opinion, waiting gently like a little time bomb in the weeds, waiting to explode and rain shrapnel onto some other case and all our civil rights down the road.

And how do all these nifty chess moves and popcorn machine feints increase the power and prestige and shelf life of SCOTUS? Simply, Chief Justice Roberts is using SCOTUS in a long and patient plot to help craft and maintain the authoritarian government he believes in, thereby making SCOTUS a vitally important Cardinal Richelieu to Mr. Trump and all future authoritarian U.S. Presidents. Yes, it is the world’s most appalling circle jerk, but you have to admit — whether you applaud both the effort and the results or you decry them — it is an effective way for a teeny tiny group of those at the top to have complete control over hundreds of millions of people beneath them while justifying their actions as constitutional. Sadly, some of the “Founding Fathers” would agree with it because many of them likewise felt that the average American was neither knowledgeable nor sophisticated enough for their votes and their voices to matter.

IN CONCLUSION: SCOTUS Chief Justice Roberts has put us on notice that he will be fomenting a power grab on behalf of the President and on behalf of SCOTUS, and it will involve vast censorship of criticism against the courts and the government, so do not be surprised when it happens and when posts like this are outlawed and erased.

Tick tick tick...