The Supreme Court held oral arguments Monday Murthy v. Missouri, a case in which the states of Missouri and Louisiana and several private plaintiffs allege that the Biden administration pressured social media companies to remove posts they believed constituted “misinformation.” Most judges stressed that at least some degree of coercion is necessary before courts can step in to block government actions in such a case.
If government officials simply resort to persuasion, however vehement, that does not in itself violate the First Amendment. Indeed, such persuasion is normal behavior for public officials. As Justice Brett Kavanaugh said, “my experience is[that] The United States, in all its manifestations, has regular communications with the media to talk about things it doesn’t like or don’t want to see or complain about factual inaccuracies.” Kavanaugh was likely referring to his service as a White House official George W. Bush administration. Judge Ketanji Brown Jackson, also a former executive branch official, made a similar point:
[L]Like Judge Kavanaugh, I have had some experience encouraging the press to suppress their speech. You just wrote about editorial. Here are five reasons why you shouldn’t write another one. You just wrote a story full of factual errors. Here are 10 reasons why you shouldn’t do it again. I mean, this happens literally thousands of times a day in the federal government.
Cynics might argue that Kavanaugh and Jackson are influenced by their experience in government service. But this distinction between persuasion and coercion is baked into the text of the First Amendment. The Free Speech Clause does not limit all government efforts to limit free speech. Rather, it prohibits government actions.”shortening the freedom of speech” (italics mine). If the state, or anyone else, persuades a private entity to voluntarily reduce speech, the freedom the speech was not shortened, although the total quantity of the speech may have been reduced.
Louisiana Attorney General Benjamin Aguinaga, defending the plaintiff states, suggested that things are different in the case of social media companies, because here the government is urging them to curtail the speech of “third parties” (users of their websites ) rather than theirs. But it’s no different than if a government official I criticize on this blog contacts Reason and urges them not to allow me to post on their site because (they claim) my criticisms of government policy are inaccurate and unfair. As long as there is no coercion, neither my freedom of speech nor Reasons would have been violated if Reason decides to exclude me from the site. I have the right to publish here only to the extent Reason permits, and excluding me (should they choose to do so) would be an exercise in They speech on freedom.
This still leaves the question of whether various federal agencies have actually forced social media sites to ban speakers from their sites. As I wrote in a post about the Fifth Circuit decision that the Court is reviewing here, I think the answer is probably “yes.” But I admit that in cases like this there can be some difficult factual questions. Smarter officials rely on veiled threats rather than overt ones. Context is key in evaluating such situations.
Importantly, the Fifth Circuit found that officials actually threatened to punish social media companies that refused their requests:
[T]Officials have threatened – both expressly and implicitly – retaliation for inaction. Officials dismissed the prospect of legal reform and enforcement action, subtly implying that it would be in the platforms’ best interests to comply. As one official said, “removing bad information” is “one of the easy, low-level things, guys [can] do to make people like me”—that is, White House officials—“think you are taking action.”
It sure seems like coercion to me! Importantly, the people making these statements were officials whose superiors had the power to carry out at least some of these veiled threats. The evidentiary and interpretive issues here are – as noted in my previous post – similar to those that sometimes arise when organized crime organizations, such as the Mafia, engage in extortion or protection rackets:
Interestingly, the record analyzed by the [Fifth Circuit] does not appear to include any examples of a direct, unambiguous threat, such as “If you don’t eliminate X, I will inflict punishment Y.” But as the court recognizes, context matters. If a representative of a mob boss tells a business owner to pay protection money because “it’s one of the easy, low-level things you can do to make people like me and the Don happy,” the context strongly suggests a threat of coercion. . The same is true if a representative of a government agency with regulatory authority on Twitter or Facebook uses similar language to pressure those companies to remove material.
If it is true that government officials “threatened…retaliation for inaction,” then the Supreme Court should uphold the Fifth Circuit’s injunction against the defendant agencies, at least to the extent that such injunction prevents coercive pressure . As discussed in my previous post, I am much less convinced that the Fifth Circuit also acted appropriately in enjoining “significant encouragement” defined as “a government actor exercising[ing] active and meaningful control over the private party’s decision.” If the private party voluntarily granted such control to the government actor, this may be bad media ethics, but it is not a violation of free speech.
For those keeping score, my position here is exactly the same as the Texas and Florida social media law cases argued before the Supreme Court last month. There, social media companies have urged the Court to strike down state laws that require them to host speech that the companies object to. These laws clearly qualify as government coercion and should be abolished. On the other hand, if officials in Texas and Florida had simply tried to persuade Facebook and Twitter to voluntarily host various types of right-wing speech, there would have been no violation of the First Amendment there either.
In summary, the First Amendment prevents the government from forcing social media companies to publish speech that the companies oppose (as Texas and Florida seek to do) or from removing speech that the companies would like to allow (as various federal agencies have apparently done ). On the other hand, both federal and state officials have every right to urge companies to voluntarily open or remove positions.
Much of Monday’s oral argument was devoted to the question of whether the plaintiffs stood. My impression is that the justices could potentially go either way on this issue, although I myself think that at least some of the plaintiffs have standing (because their speech on social media has been restricted in response to coercive pressure exerted by government agencies ). If the Court decides that private plaintiffs don’t have standing, it could be tough on state governments, as the Supreme Court hasn’t been very friendly to states’ creative claims in recent years. I will leave the details of these questions open to other commentators.
If the Court were to weigh in, I hope it would make clear that coercion is the appropriate standard, but also that veiled but credible threats of retaliation from government officials qualify as such coercion.