Professor Philip Hamburger has posted a response to my critique of his post on the social media free speech cases currently before the Supreme Court. The latter, in turn, responded to my earlier argument that courts should focus on coercion in Murthy v. Missouri. For those keeping track, this is now the fifth post in this series.
In his latest post, Prof. Hamburger accuses me of repeating my “errors.” But I remain unrepentant. It is in fact Hamburger himself who has doubled down on his mistakes.
Most notably, he continues to neglect the significance of the fact that the First Amendment protects “freedom of speech.” By its very nature, freedom is voluntary choice. Therefore, it cannot be restricted in the absence of some kind of coercion. That’s true even if Prof. Hamburger is right (as he surely is) to describe the Free Speech Clause of the First Amendment as a “limit on government.” The limit it imposes on government is preventing it from using compulsion to restrict speech. By contrast, it does not prevent the government from using persuasion to influence private speech, or from engaging in coordination with private speakers.
Prof. Hamburger continues to emphasize the fact that the First Amendment bans “abridging” of freedom of speech, as opposed to the ban on “prohibiting” freedom of religion. I agree this means free speech gets somewhat greater protection than religious freedom does. But the thing that it is protected against must still be some form of compulsion. Absent compulsion, there can be no restriction of freedom. the distinction in wording just means that relatively mild forms of coercion that may not rise to the level of “prohibition” might still qualify as “abridgement.”
Hamburger claims my view would allow the government to “buy off” its critics. But conditioning government benefits on the exercise of constitutional rights (or refraining from exercising them) raises other constitutional problems. Among other things, it implicates the doctrine of “unconstitutional conditions,” which prevents the government (at least in many instances) from discriminating on the basis of speech with respect to the distribution of government benefits. Thus, for example, the government cannot adopt a law restricting Social Security benefits to people who express support for the Democratic Party, or at least refraining from criticizing it. Activities like persuasion or “jawboning” do not qualify as such discrimination.
Prof. Hamburger also doubles down on the dubious claim that social media platforms don’t have free speech rights over the material they post on their websites. But, as discussed in my previous post, platforms do in fact exercise editorial control over what speech they allow on their sites, through their terms of service. In that respect, they are similar to media entities like Reason or the New York Times.
Hamburger responds that the platforms sometimes took down speech even without changing their terms of service. But he is missing the point. The existence of terms of service with substantive limitations on the types of speech platforms allow on the site shows that it is not the case that they are “public squares” where anyone can say whatever they want. Rather, they are private property where the owners exercise editorial control over speech. They can do that through terms of service. But, unless prohibited by freely undertaken contractual obligations, they can also do that in other ways.
In his latest post, Prof. Hamburger continues to promote a double standard under which he has an extremely broad view of what is prohibited by the First Amendment when it comes to non-coercive government persuasion to bar social media posts, but a very narrow one with respect to Texas’s and Florida’s attempts to force social media firms to host speech they disapprove of. He now tries to justify this by claiming that social media platforms are “common carriers.” This analogy is badly flawed for reasons I outlined here.
Social media firms have never been legally considered common carriers in the past. And state governments cannot make them so just by legislative fiat. If they could, the same strategy could be used to force other private entities to publish speech they disapprove of, by passing laws declaring them to be “common carriers,” as well. Thus, they could force Fox News to air more left-wing views, compel the New York Times to publish more right-wing ones, and so on.
Prof. Hamburger accuses me of departing from libertarian principles, due to my focus on coercion. But the distinction between coercion and voluntary action is actually fundamental to libertarianism—and, indeed, to most other forms of liberalism. It is, in fact, usually opponents of libertarianism—particularly left-wing ones—that seek to efface the distinction between the two, thereby justifying government intervention to protect people against supposedly oppressive voluntary relationships. Such arguments are a standard justification for restrictive labor regulation, for example, where it is said that voluntary agreements to work more than certain amount of hours or for pay below the minimum wage are actually “exploitative” coercive.
Finally, Prof. Hamburger complains about my pointing out that speech can be a “public bad,” and worries that it is somehow a justification for suppression. I think it is pretty obvious that at least some speech is a public bad, in so far as it can lead to horrific government policies. That was true of Nazi and Communist speech, for instance.
It doesn’t follow that the government is justified in suppressing such speech. Even speech advocating awful ideas is still an exercise of an important individual liberty. And there is—to make an obvious point—good reason to distrust government judgments about which speech is harmful and which is not. Thus, there should be at least a strong presumption against allowing the government to deal with this public bad through coercive censorship.
By contrast, the use of non-coercive suasion—whether by the government or private parties—doesn’t pose anything like the same risks. Private entities who differ with the government’s position will remain free to publish opposing views. And so long as there is a market demand for such views, there will be incentives to publish them. If the government persuades, say, Twitter or Facebook, to take them down, that just creates a market incentive for others to publish them.
In sum, there is good reason to worry about government use of coercion to either suppress speech (as the Biden Administration may well have done in Murthy v. Missouri), or to compel it (as Texas and Florida are trying to do). But the First Amendment does not bar the government—or anyone else—from using non-coercive persuasion.
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