This piece originally appeared in Bloomberg Law on March 14, 2024.
Stopping the government from secretly attempting to remove lawful political speech it dislikes from public discourse should be a First Amendment no-brainer.
Unfortunately, while the US Supreme Court has long recognized that government may not pressure private parties to censor speech the government can’t censor directly, federal appellate courts have resolved questions about this type of government pressure with a squishy multifactor balancing test.
Those tests require courts to parse every word the government uses when communicating with third parties, weighing “tenor” and “tone” to decide whether this phrase or that transforms “persuasion” into “coercion.” The results are unpredictable, and years may pass by the time everything is sorted out in court.
This term, the Supreme Court has an opportunity to bring clarity to this state of affairs and defend free speech when it hears Murthy v. Missouri. The plaintiffs in Murthy allege that attempts by the Biden administration to pressure social media companies to remove speech, often under the guise of stopping “misinformation,” violate the First Amendment.
The lower courts, which ruled against the Biden administration, found these efforts covered such topics as the origins of the Covid-19 virus, the wisdom of climate change policy, and even jokes about Jill Biden.
For cases involving lawful speech—especially speech about public policy, government officials, and other matters of public concern—courts should abandon this focus on policing the line between “persuasion” and “coercion.” A request from a government official is inherently intimidating, particularly to any regulated industry or taxpaying individual.
That intrinsic intimidation creates an enormous risk of chilling speech disfavored by the government. The problem is particularly acute when the government suppresses speech during ongoing policy debates because judicial resolution comes too late to be effective.
For example, in Murthy, one target of government pressure was speech about the efficacy of new vaccines, in the middle of a government-backed campaign to increase vaccination. These were urgent issues of public policy, yet the government successfully silenced critics during the most critical time.
The public requires a free exchange of information to make choices and evaluate issues. Ideas compete for acceptance. Truth emerges—it is not dictated by the government.
In our amicus brief in Murthy, we suggest that the “Court should hold that the government violates the First Amendment when it privately solicits a third party to remove another person’s lawful political speech from the public discourse.”
This bright-line rule prevents most government jawboning without interfering with any legitimate interest the government may have. Government officials could, of course, offer their own opinions. But they could not pressure third parties, such as social media platforms, to “take down” the lawful speech of others.
Adopting this clear, robust rule against interfering with political speech gives the First Amendment, as the Supreme Court ruled in Citizens United, the “breathing space” it needs “to survive.”
Indirect government censorship is, in many respects, even more alarming than direct censorship. Because the speech belongs to someone else, third parties have less reason to resist the request. You get to please a government official, and it’s not your speech that disappears. In fact, the actual speaker often won’t even know that the government instigated the censorship. Where a journalist or other speaker might defend their speech against government pressure, a third party is much more likely to give in.
Recent reports that White House officials asked Amazon to censor books questioning vaccine efficacy again illustrates the danger of such government conduct. One day after officials first contacted the company, Amazon complied. Absent a congressional subpoena, would anyone have known?
The better approach is to declare that the government violates the First Amendment whenever it requests the removal of lawful political speech. There is no need to determine whether the request is “coercive.” Prohibiting the government from even requesting that third parties remove disfavored political speech provides the stronger protection that is required.
If the government dislikes political speech circulating online, it can counter that speech with its own. As the court noted in United States v. Alvarez, the “remedy for speech that is false is speech that is true.”
There are, of course, some cases where the government has good reason to request that speech be removed. Narrow exceptions can be made, for example, for particularized threats of violence, speech that directly compromises national security, or intentional falsehoods about election dates and polling locations. But no legitimate interest justifies suppressing lawful opinions about politicians or public policy.
Private companies increasingly constitute society’s public square in the digital age. To serve that role well, we need to insulate them from government pressure. And government officials must be given a clear line not to cross.
The First Amendment demands a bright-line rule against government interference with third parties who host our speech. The Supreme Court should use Murthy to provide it.
The case is Murthy v. Missouri, US, No. 23-411, to be argued 3/18/24
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Charles “Chip” Miller and Brett Nolan are senior attorneys at the Institute for Free Speech and co-authors of the Institute’s amicus brief in Murthy v. Missouri.
Reproduced with permission. Published March 14, 2024. Copyright 2024 Bloomberg Industry Group 800-372-1033. For further use please visit https://www.bloombergindustry.com/copyright-and-usage-guidelines-copyright/
