A Government Veto on Speech at the Supreme Court
Murthy v. Missouri challenges government efforts to suppress dissenting viewpoints on social media.
UPDATE: The Court has issued a 6–3 decision in Murthy v. Missouri, holding that the plaintiffs lack standing.
A case pending at the U.S. Supreme Court stems from the efforts a multitude of federal agencies made to remove certain viewpoints from public view. In other words, they sought to abridge freedom of speech—you know, that thing that the First Amendment explicitly bans.
The case, Murthy v. Missouri (formerly Missouri v. Biden), may support or overturn the 5th Circuit's ruling that the government violated the First Amendment to reduce the circulation of viewpoints that various agencies believed noxious. This included, the court noted in its decision, controversies surrounding the "COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story."
In many cases, the speech that offended the government has proven demonstrably true—the high social cost of school closings, for example, or the provenance of Hunter Biden's laptop. But the central problem is that the government sought, and often succeeded, in blocking free expression. Rather than engage in free and open debate, the government sought to squash it.
Speakers who were targeted for silencing—such as Jay Bhattacharya, a Stanford professor of medicine and economics—sued the government. The primary evidence came from caches of correspondence revealing government administrators cajoling, berating, swearing at, and arguably threatening (with policy sanctions) executives at Twitter, Facebook, Google, Microsoft, and Spotify.
A Louisiana judge issued extensive injunctions that barred a variety of officials and agencies from "meeting with social-media companies for the purpose of…pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech." This was largely upheld on appeal, and the Supreme Court accepted a review, with a hearing held this past March.
During oral arguments, the government suggested that these officials merely "sought to mitigate the hazards of online misinformation" by "calling attention to content" that violated the "platforms' policies." A pro-government amicus brief by the Brennan Center argued that "communications by government officials—even emphatic ones—are an exercise of the government's prerogative to voice its own views and are consistent with the First Amendment as long as the ultimate decision regards content rests with the platforms themselves."
Yet the principal deputy solicitor general, representing the federal government, readily conceded that officials do not enjoy First Amendment protection for such speech, only the ability to inform the public as part of their job-related duties. The constitutional protection of free speech lies with the speakers (who in this case were targeted and suppressed) and the public (who would benefit from having unfettered access to differing viewpoints).
Regrettably, the justices seemed to identify with the state. Justice Brett Kavanaugh, recalling his years serving in George W. Bush's White House, commented: "It's probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, you know, if you run that, it's going to harm the war effort and put Americans at…risk." Justice Elena Kagan chimed in: "I've had some experience encouraging press to suppress their own speech. 'You just wrote a bad editorial. Here are the five reasons you shouldn't write another one'….This happens literally thousands of times a day in the federal government."
Buttressing the claim that it was standard operating procedure for government officials to complain was the fact that many times the platform executives had cooperated with the government, endorsed a "partnership," and appeared to welcome state influence.
But if the state is victorious in this suit, the genius of the First Amendment will be collateral damage.
"The purpose of the Constitution and Bill of Rights…was to take government off the backs of people," wrote Justice William O. Douglas in Schneider v. Smith. "The First Amendment's ban against Congress 'abridging' freedom of speech [creates] a preserve where the views of the individual are made inviolate." Law professor Lucas Powe—once a clerk for Douglas—expanded: "Our traditions are clear. A fair press, as determined by a government mechanism, is not a free press. A free press may be fair; we hope it will not be irresponsible; but…for the press to serve as a check on the government it must be free to gather and report information about government and those who do or would govern."
The evidence in Murthy shows that the U.S. government actively monitors online discussions, targets speech that breaks no laws, and then aggressively requests that the speech's distribution be reduced or labeled as dubious or false. Government officials are free to make such points in open debate, but a Truth Squad operating behind the scenes violates the spirit and letter of the Constitution.
The Institute for Free Speech recommends a clarifying bright-line rule: "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.'"
Private owners of media platforms enjoy First Amendment rights, and they are indeed constitutionally protected in determining whether to agree with one side or the other in moderating platform discussions. But when public resources are used to banish rival opinions, a constitutional boundary is crossed.
Alas, the U.S. has failed this test before. In the long-running error that allowed the Federal Communications Commission (FCC) to regulate broadcast TV and radio content under policies like the Fairness Doctrine, rules were not explicitly stated and the public was rarely informed. Instead, the commission engaged in what was known as "regulation by raised eyebrow." If a broadcaster did not refrain from engaging in controversial programming, as determined by FCC bureaucrats (perhaps acting on congressional or White House requests), it would risk costly challenges to its operating license. The raised eyebrow threatened free speech by transmitting political demands without a paper trail.
The First Amendment did not allow this form of government control with respect to newspapers, or even in the case of franchised cable TV operators, but the government seized a loophole in over-the-air transmission supposedly based on the "physical scarcity" of the radio spectrum. If applied today, this bogus justification for content regulation would absurdly allow the FCC to force The New York Times to give free editorial columns to critics, given that most subscribers receive the digital edition delivered via radio waves (Wi-Fi, 4G, 5G).
In the key legal test of the Fairness Doctrine, 1969's Red Lion Broadcasting Co. v. FCC, the Supreme Court recognized the lethality of subtle threats. While the Court allowed the Fairness Doctrine to stand, rejecting the First Amendment challenge to end it (which finally did happen via a Reagan-era FCC), it observed that a chilling effect could be triggered by rules requiring free (unpaid) equal time for opposing views: If broadcasters would consequently "eliminate their coverage of controversial issues, the purposes of the [fairness] doctrine would be stifled." Yet the Court dismissed the harm as merely speculative.
The Court was wrong: the case was, in fact, brought as part of a Kennedy-Johnson campaign aimed at filing Fairness Doctrine complaints to "harass and intimidate" anti-Administration broadcasters, as revealed in Fred Friendly's 1975 book, "The Good Guys, the Bad Guys, and the First Amendment."
Whatever one's views of the efficacy of COVID-19 vaccines, it is clear that many people (experts included) have changed their minds about them. It is well to recall that in October 2020, for example, MSNBC hosts denounced the Trump administration for rushing the Moderna and Pfizer shots to the public. The network appears to view things differently now. This should surprise no one. What would be shocking would be a situation where any group, including government experts, never let their understanding of the truth evolve. That's one reason freedom of debate is key.
Consider one of the most colossal censorship errors ever made in a free, democratic republic. In 1934, Winston Churchill's speech condemning "the danger of ignoring German rearmament" aired over the national radio system, the BBC. Churchill was then silenced—for six years the BBC barred his appearance. Only in 1940, when Hitler was marching through Europe, World War II had come to England's doorstep, and Winston Churchill was prime minister would his anti-Hitler message again be heard on the nation's airwaves. Whatever the chances that Churchill's plan of a tough-minded, preemptive move to block Adolf Hitler may have averted the "gathering storm," the tens of millions who died in the horrors of World War II would never know.
By suppressing his speech, the BBC's censors—the disinformation board of its time—likely contributed to carnage. In lieu of saving face for officials running the policy show, the lower-risk path would be to let competing viewpoints bloom. It's the profound gift of a rule prohibiting government's veto power over free speech.
