Philip Hamburger, a professor at Columbia, is the CEO of the New Civil Liberties Alliance, which represents most of the individual plaintiffs (mostly scientists) in Murthy v. Missouri.
Hamburger wrote the following post to respond to Ilya Somin again in their ongoing debate (here and here) about free speech and coercion:
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I am grateful to Prof. Somin for defending his coercive view of the First Amendment. In this way he makes it clear where we differ.
Text. Prof. Somin’s response is strangely indifferent to the text of the First Amendment. Forbidding is a matter of coercion. The First Amendment deliberately distinguished abbreviating from prohibiting. If, as it suggests, the amendment makes coercion the parameter of free speech, why is it being talked about? abbreviating freedom of speech? He would have us believe this even though she has spoken about it carefully abbreviating freedom of speech, that textual indication should simply be ignored.
Prof. Somin feebly admits that “[t]here there may actually be a meaningful distinction between ‘restrict’ and ‘prohibit.’ freedom as simply the discretion or choice of individual speakers. But the word freedom should not be interpreted to undermine the distinction between abbreviating AND prohibiting clearly outlined in the text.
Power limit. The professor. Somin also persists in viewing rights as marketable goods and not as legal constraints on government. To be sure, the First Amendment’s free speech was a limitation on government, not just a right. In fact, the First Amendment makes this explicit by beginning, “Congress shall make no law….” This conception of rights as limits to power was mentioned in 1785 in the A Symsbury case-A Connecticut resolution holding a legislature could not acquire property even with consent or acquiescence, apparently because this was “not constitutionally within the power of the General Assembly to do so.”
In other words, private consent cannot relieve the government from the limits of power established by the First Amendment. While Prof. Somin is certainly right that an individual can choose not to exercise free speech, no amount of consent can give the government the power to limit that freedom.
Protected Sphere of Freedom. Furthermore, Prof. Somin fails to understand that the speech clauses of the First Amendment protected a sphere of freedom, equal for all, that the government could not limit. This conception of free speech is evident from the founding era theory of free speech as a natural right. See Philip Hamburger, Natural Rights, Natural Law, and American Constitutions 908-09. The point is not that anyone should believe in natural rights, but that the government has been prevented from curtailing a protected sphere of freedom, whether by coercion or consent.
One of the dangers of Prof. Somin’s vision of free speech is that it allows the government to corrupt its critics. In effect, he allows the government to use consent to curtail the speech rights of nonprofits, students, and so on, so that Americans are deprived of a shared interest in a shared realm of freedom. In his view, there is little free speech that the government cannot buy, and no shared freedom that all Americans can rally to defend. See Procurement Request 107-08 (Harvard 2021).
Misunderstands the Terms of Service. The professor. Somin appears to assume that the platforms carried out the government’s censorship requests only after changing their terms of service. This is simply untrue; often, platforms have given in to the government without changing those terms. It also assumes that users can sue for violations of the terms of service; but this is usually not true.
Not the Platform thing. Even if his theory of coercive consent does not deviate from the text and from eighteenth-century conceptions of free speech, it still fails because it assumes that the platforms are the speakers. In his opinion, posts on the platforms represent their speech, and the government can limit free speech as long as it obtains consent, that is, as long as it does not use coercion.
But the posts that people make on the platforms are Not the discussion of platforms. Not even the platforms argue much. Instead, they claim that they have First Amendment editorial discretion, or the right to expressive discrimination against their users. So Prof. Somin is simply wrong to assume that platform posts are the speech of the platform and that platform consensus is therefore a cure for repression. In fact, the posts inserted on the platforms by private individuals represent their speech. Therefore, even according to Prof. Somin’s anti-textual and ahistorical theory, the government should need the consent of individuals.
Information asymmetry. Prof. Somin declares his aversion to changing notions of consent in contract. My point, however, was not to embrace one view or the other, but simply to note that his vision of a clear opposition between consent and coercion departs from contemporary legal doctrine and the medical and psychological literature on consent.
He accuses me of contradiction. Prof. Somin even accuses me of contradicting myself because I have “an expansive view of what is prohibited by the First Amendment when it comes to non-coercive pressure by the government to block social media posts, but a very narrow one when it comes to Texas and Florida attempts to force social media companies to host speech they disapprove of. In the latter situation, there is blatant and obvious coercion.” Obviously this is not a reasonable presentation of my views.
As Prof. Somin might easily have imagined, my historically informed opinion is that, for hundreds of years, the common carrier doctrine has applied to communications carriers, and that doctrine has never until now been considered a threat to freedom of word. Conceptually the point is that a duct is not a speaker. Indeed, platforms’ attempts to claim editorial discretion fail when it is realized that this is a claim of expressive discrimination against their users.
Apologies for the deletion. Prof. Somin reveals his underlying lack of commitment to free speech when he says that some speech, such as “misinformation,” can be a “public evil.” In other words, he apparently does not recognize that much of the alleged misinformation was true – indeed, was believed to be true by those who suppressed it – and his suppression has negatively affected public policy. He also seems to believe that the government or platforms are qualified to be the arbiter of truth. He also reveals his precedents when he argues that one should not be too concerned about the current censorship regime because it only reduces some offensive expressions of opinion, leaving other instances online, as if the volume of opinions does not matter and as if the value of the speech it must be measured as a whole, without worrying about the suppression of individual items.
This is all very disturbing, especially coming from an avowed libertarian. I suggest he reread John Stuart Mill’s On Freedom.
Conclusion. Simply put, Prof. Somin’s view of the First Amendment is completely wrong: textually, historically, and conceptually. It is also factually wrong to assume that platform consent is sufficient under his theory, because the censored speech is the platforms’ speech. This is simply false.