I watched with great interest yesterday’s argument in Murthy v. Missouri, the former Missouri v. Biden. My sense was that most Justices were skeptical about the argument that the government violates the First Amendment simply by noncoercively urging and “substantial[ly] encourag[ing]” platforms to restrict speech.
Among other things, as Justices Kavanaugh and Kagan suggested, the government likely ought to be free to, for instance, call up an editor to ask the editor not to run a story (or publish an op-ed) that the government thinks might interfere with some investigation, or be unfair, or simply be inaccurate, so long as this is understood as a request and not a coercive demand. I tentatively think that has to be right; and the challengers to the law didn’t seem to have much of a response.
On the other hand, the discussion (including Justice Kagan’s example of the government asking platforms to remove pro-terrorist speech, even when it’s constitutionally protected) crystallized one thing that’s troubling me and I expect some others.
Say the government thinks some speech is dangerous in various ways. It might be pro-terrorist, anti-Semitic (an example given by the government’s lawyer in the argument), skeptical of vaccine reliability, anti-war, unpatriotic, sharply critical of the police, and so on. The government recognizes that it can’t criminalize the speech. But, it says, at least it can deplatform it from the government’s own property. It therefore blocks such speech from the mails. It blocks people from engaging in such speech from government-owned parks and sidewalks. It blocks them from engaging in such speech from forums that it has opened up for private speech, such as meeting rooms in public libraries, or student group events in public university classrooms. More generally, it tries to pervasively stop private citizens from expressing such speech on government property.
Clearly unconstitutional, the Court’s doctrine has said. Even on the government’s own property (and even setting aside “traditional public forums” such as parks and sidewalks), the government can’t exclude speech based on viewpoint. To quote Justice Thurgood Marshall in an early government property case,
[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control.
And, as to viewpoint control, the Court has extended that even to property such as K-12 classrooms, when opened for public use after hours. Indeed, this recognition that the government may not suppress viewpoints it dislikes even on its own property (once it has opened it up for public access) has been seen as one of the signal achievements of the liberal wing of the Supreme Court.
Yet now much private speech has moved off government property and onto “the modern public square” of social media. The mails are less important than ever before, I think. Many people spend little time on public parks and sidewalks, where they can see the traditional streetcorner speaker.
So the federal government, constitutionally disabled from restricting viewpoints on this sort of property, is claiming the right to engage in a systemic campaign of encouraging private entities to suppress those viewpoints from being expressed on those entities’ property. “Sure, we have tolerate offensive viewpoints on our property, which isn’t that important for public debate any more,” the government seems to be saying. “But it’s fine for us to set up a system that uses all our persuasive power to get private property owners to ban those viewpoints from their property, which is much more important for public debate.”
Now maybe this is defensible: Maybe there is a sharp First Amendment divide between government acting to block certain viewpoints from being discussed on its own property and government merely persuading private parties to block those same viewpoints from being discussed on their property. Or maybe this power to persuade private parties to block speech is actually a necessary feature of our system of public discourse: Maybe we can afford to protect evil and dangerous speech from government suppression only because we can expect private institutions to suppress it (including with the government’s help). Or maybe there’s just no administrable way of distinguishing proper attempts to persuade entities not to publish or display certain material from improper ones.
But this situation—government lacking power to restrict viewpoints on its own property but at the same time systematically working with the platforms to have those viewpoints restricted on their property—does give me pause. And it might be what led the Fifth Circuit Missouri v. Biden panel to condemn such encouragement, when done as part of a system; here is an example from a passage where the court found unconstitutional encouragement of restriction even having expressly found absence of coercion:
Ultimately, the CDC was entangled in the platforms’ decision-making processes…. [T]he platforms’ decisions were not made by independent standards, but instead were marred by modification from CDC officials. Thus, the resulting content moderation, “while not compelled by the state, was so significantly encouraged, both overtly and covertly” by CDC officials that those decisions “must in law be deemed to be that of the state.”
In any event, I’m still not positive what the right approach ought to be. As I noted, it seems to me that a majority of the Justices was skeptical of any prohibition on the government noncoercively encouraging private parties to restrict speech. Perhaps that skepticism is warranted. But I just wanted to flag what strikes me as one structural argument cutting against that skepticism.
Note that I’m Counsel of Record in NRA v. Vullo, which the ACLU’s David Cole argued right after Murthy. But though Murthy and Vullo share one issue—the coercion question—this post is solely limited to the “substantial encouragement” facet of Murthy, which is not present in Vullo.
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