FAQs re Murthy v. Missouri

Philip Hamburger on How to Understand this Free Speech Case

Philip Hamburger asked me to post these FAQs about Murthy v. Missouri. Philip is CEO of the New Civil Liberties Alliance, which represents most of the individual plaintiffs in Murthy. I am on the NCLA's board.

PHILIP HAMBURGER:

Next Monday, the Supreme Court will hear arguments in Murthy v. Missouri considering whether it should sustain the injunction awarded to the plaintiffs in the Fifth Circuit. The plaintiffs are Missouri, Louisiana, and five individuals (mostly scientists) whose speech was suppressed by social media platforms at the behest of the government. These FAQs address some crucial questions in the case.

 

Is Coercion Really the Standard?

Blum v. Yaretsky, 457 U.S. 991 (1982), emphasized the centrality of coercion, so that may seem to be the measure of state action in Murthy. But Blum focused on coercion to bar an overstated due process claim, and it therefore cannot be taken as a reliable precedent for First Amendment violations. See Philip Hamburger, Courting Censorship, 4 J. of Free Speech L. 195, 227 (2024).

Different rights establish different measures of prohibited government action. Of particular importance in Murthy, the First Amendment distinguishes "abridging" the freedom of speech from "prohibiting" the free exercise of religion. It thereby makes clear that government action merely abridging, or reducing, the freedom of speech violates the First Amendment. To be sure, coercing or other prohibiting is sufficient to show a speech violation, but it is not necessary. Hamburger, Courting Censorship, § III.B.

 

Even if Coercion Were the Measure of Speech Violations, Has that Standard Been Met?

This isn't the place to run through the reams of evidence that convinced the district court and the Fifth Circuit. Instead, consider what the government says.

Whereas Blum emphasized "coercive power," the government's briefs recast this as a "compulsion" test. The government does this by relying on a casual mention of the word "compels" in Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). The government's attempt to move the goal post from coercion to compulsion is telling because coercion is merely a wrongful threat or pressure. In contrast, compulsion involves a situation in which one could not have done otherwise. The government, in other words, is asking the Court to recast its precedents on coercion in terms of the nineteenth-century standard for duress! That's nearly a concession that the government can't prevail on the coercion standard.

 

What about Borderline Hypotheticals?

It is easy to ask hypotheticals about innocent or borderline government "jawboning." For example, doesn't the government need to be able to talk to a newspaper about sharing information that might aid terrorists? And what if government wanted to talk to all newspapers about this danger? But such questions are distractions, because Murthy is miles away from any borderline:

• The censorship in Murthy suppressed speech that was not criminal or otherwise unlawful, and the injunction specifically excludes government action against unlawful speech.
• The government set itself up as the nation's arbiter of truth—as if it were competent to judge what is misinformation and what is true information. In retrospect, it turns out to have suppressed much that was true and promoted much that was false.
• The government went after lawful speech not in an isolated instance, but repeatedly and systematically as a matter of policy, resulting in the suppression of entire narratives and lines of thought.
• This isn't jawboning. Rather than talk to newspapers about their own speech, the government asked the platforms to suppress third party speech. If the government were merely jawboning, it would have talked to the censored speakers, asking them to reconsider their posts. Instead, it requested the platforms to suppress the speech of others.
• The government kept much of the censorship and its role secret, so Americans often did not even know they were censored or who did it. The covert nature of the government's efforts bespeaks a recognition that the government was acting unlawfully.
• The government often suppressed speech coercively.

The government censorship is thus far beyond anything that could be constitutional. There consequently is no need to worry about innocent or borderline cases. That's not what's at stake here.

 

How Much Suppressive Effect Is Necessary to Violate the First Amendment?

Actually, none. That's right, none at all. The First Amendment says that "Congress shall make no law . . . abridging the freedom of speech. . ." That means that a law or policy abridging the freedom of speech is void ab initio, and thus without any need to show suppressive effects.

As it happens, the government's censorship policies had massive suppressive effects, both through suppression and the chilling effect. For example, distinguished doctors and scientists, including Drs. Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff, were censored for speech within their expertise. Dr. Kulldorf, for example, a Harvard epidemiologist and one of the most cited scientists on vaccine safety, was censored on Twitter for saying that children and the naturally immune do not need a Covid-19 vaccine. He also was censored for saying that exaggerations about the efficacy of masks, including exaggerations by government officials, gave vulnerable people a false sense of security and therefore might lead to harm. Indeed, the suppression of information about adverse vaccine events misled ordinary Americans into thinking there was essentially no risk. So, many individuals who otherwise might have paused got vaccinated and died or were disabled (see Dressen v. Flaherty). But even without proof of the suppression and chilling effect, the government's policies abridging the freedom of speech were unconstitutional and void the moment they were adopted.

 

How Can One Resolve the Tension between the Standing and Injunction Requirements?

The standing inquiry in Murthy is intertwined with the question about the injunction's breadth. If the case rested simply on readers' rights, then almost everyone in America would have standing, which is too broad. If the case turned simply on speakers' rights, then there would be no foundation for an injunction barring censorship of anyone other than the plaintiffs. So, one might think that the plaintiffs can't establish both standing and an effectively broad injunction.

But this conundrum is an illusion; it arises from the supposition that readers' rights are distinct from speakers' rights. In fact, they are intimately connected, because the capacity to receive uncensored speech is essential for speakers to formulate and express their views. There is no risk of overly broad standing claims because the standing in this case rests at the very least on the plaintiffs in their capacity as speakers who were suppressed. The injunction also rests on their claims as speakers, who need the freedom to read the speech of others in order to develop and express their own views. Thus, in their capacity as speakers, they have a right to an injunction against censorship of all persons whose posts they might read. Hence, the compatibility of a narrow vision of standing and a suitably broad injunction.

 

Do the States Have Freedom of Speech under the First Amendment?

The answer is clear enough from the text of the First Amendment's speech clause. It expressly limits the federal government, not the states, and it does not confine those who can claim its rights to citizens or even the people. The states thus have the First Amendment's freedom of speech, even though the federal government does not.

This has been clear, moreover, since the founding era. When protesting against the 1798 Sedition Act, Jefferson and Madison, in the Kentucky and Virginia resolutions, asserted the First Amendment's freedom of speech. It therefore is evident that the states enjoy the amendment's freedom of speech and, moreover, that they can assert it on behalf of their peoples. Once again, states are serving as an essential counterweight to federal censorship, and the justices should appreciate the fact that the states are working through the courts this time, not interposition.

 

Will There Be No Remedy for Most Massive Censorship in American History?

The Supreme Court's doctrine on qualified immunity largely deprives Americans of a remedy for past censorship. And if the Court confines the injunction here—for example, by allowing an injunction protecting the plaintiffs, but not others—then there will no effective injunction against future censorship. So there's a real risk that the Court will deprive Americans of any effective remedy, whether against past or future censorship.

Indeed, this result may have already happened. Americans need legal remedies that will stop censorship in its tracks. But injunctions can't be timely against a largely covert censorship regime. Because of the secrecy, it took half a decade to get the current injunction. Moreover, an injunction is unlikely to bar all the censorship, especially under precedents, such as Blum, that emphasize coercion. The Fifth Circuit's injunction (which is narrower than the original district court one) enjoins only some of the censorship, leaving much room for other government-orchestrated suppression. So Americans are already without an effective remedy—even against the most massive censorship regime in the nation's history. The Supreme Court therefore needs to worry whether its doctrines (for example, on qualified immunity and on coercion) have already left Americans without adequate remedies against the suppression of speech. See Hamburger, Courting Censorship, passim.