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Journal of Free Speech Law: "Courting Censorship," by Prof. Philip Hamburger
The article is here; the Introduction:
Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.
The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court's precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.
This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion as the archetype or model of constitutionally accountable government conduct. Even in suits against government, the Blum test normally requires plaintiffs to prove that private action has been coercively converted into government action. In such ways, the Blum state action doctrine is not merely erroneous, but has signaled to government that it can get away with censorship as long as it keeps most of it privatized and not overtly coercive.
When it comes to the First Amendment, this Article expresses concern about the doctrinal tendency to confuse "abridging" and "prohibiting." The First Amendment carefully distinguishes the two: It simultaneously bars abridging, or reducing, the freedom of speech, and forbids prohibiting the free exercise of religion. This isn't to say that much coercion is required for a free exercise violation. But the First Amendment at least reveals that it bars whatever merely diminishes the freedom of speech, without any need to show coercion or other prohibiting. Unfortunately, this important distinction between abridging and prohibiting has been lost, with the result that First Amendment doctrine seems to make coercion necessary for a speech violation. Once again, doctrine mistakenly suggests that government can censor Americans—at least if it avoids the most blatant sorts of coercion.
The Supreme Court needs to repudiate the judicial doctrines that invite censorship. When the censorship-justifying doctrines are put aside, and the First Amendment itself is examined, it becomes clear that the Amendment leaves no room for privatized and less-than-coercive evasions of its freedom of speech. This is not, moreover, an unrealistic ideal. The First Amendment itself contains hints as to how censorship can be barred without standing in the way of lawful executive persuasion.
[A.] The Problem
The problem that provokes this inquiry is massive government censorship. Federal censorship through the dominant social media platforms (the "Platforms") has been occurring since at least 2018 and on a vast scale since 2020. It has included the review of billions of posts; it has suppressed millions. It already has affected one presidential election, two cycles of congressional elections, much science and medicine, and cutting-edge social questions. Moreover, it has taken until 2023 for a court to issue an injunction against such government censorship—and even then, against only some of it and against only some of the relevant government officers. Much of the censorship continues.
One might have thought that judicial doctrine would have nipped any such federal suppression in the bud. Yet apparently not. So it is necessary to ask, why not?
The inquiry is especially pressing because the current censorship dwarfs the censorship familiar from the 1798 and 1918 Sedition Acts. Rather than punish merely some authors, publishers, and activists, it has also suppressed vast numbers of ordinary Americans. This is censorship at a scale that lies far outside earlier American experience.
Of course, the censorship has been imposed primarily by the Platforms, not government. It therefore may seem misplaced to focus on the government's role. But just because the Platforms are so central in the censorship doesn't mean one can ignore the government's participation. It will be seen that the Platforms depend on government coordination to sustain much of even their private censorship, so government's role is crucial. Moreover, the Constitution limits government, not private parties. Therefore, both the censorship's realities and its interaction with the Constitution demand attention to the part played by government.
The Constitution should have stopped the current censorship scheme in its tracks. It will be seen that the Constitution is framed to prevent officials from even adopting suppressive policies, let alone carrying them out. This is essential because when government controls speech, it can subvert freedom at every level, including elections, rights, and even personal commitments to these constitutional foundations.
Judicial doctrine, however, has left room for censorship. Or perhaps more accurately, judicial doctrine has allowed government to imagine it has room for censorship.
Of course, the constitutional protections for speech have not been entirely erased. The remaining protections, although much worn down, have at least been sufficient (thus far) to support an injunction in Missouri v. Biden—now Murthy v. Missouri—against the most overt elements of the current censorship regime. So, even current doctrine has some value.
Existing doctrine, however, is not good enough. Under current judicial interpretations of the Constitution, it has taken half a decade just to get an initial injunction against the censorship. And the government evidently thought, and still thinks, that the suppression that it has orchestrated is not unconstitutional under prevailing doctrine. While purportedly protecting the freedom of speech, the Constitution has been interpreted in ways that open up pathways for evasion, very nearly authorizing what the First Amendment forbids.
[B.] This Article's Analysis
Part I examines federal power, arguing that judicial doctrine has eroded the Constitution's structural protections for speech. Commerce Clause doctrine seems to authorize federal regulation of speech—something the Clause once seemed to preclude. In the shadow of this legislative power over speech, the executive uses administrative and even sub-administrative processes to regulate speech, thus allowing it to circumvent both the front-end legislative protection and back-end judicial protection afforded by the Constitution. That is, government no longer must get the prior approval of the nation's elected representative legislature or the subsequent judgment of an independent judge and jury. Doctrine has thus dismantled the substantive and procedural protections that once provided structural safeguards for speech, leaving the federal government relatively free to impose censorship.
Part II shifts to rights, showing how Blum v. Yaretsky and allied cases have weakened the freedom of speech by subjecting it to an artificially narrow conception of state action—what this Article more accurately treats as government action. Blum elevates coercion as the prototypical way to violate rights and treats privately effectuated censorship as unconstitutional only if, paradoxically, the private action amounts to public action. The doctrine in Blum thereby leaves the impression that government can censor Americans through private entities as long as it is not too coercive. Indeed, the doctrine seems to suggest that, without traceable coercion, the censored lack standing to challenge their oppression.
In fact, as seen in Part III, the First Amendment more capaciously forbids any abridging, or reducing, of the freedom of speech—thus protecting that freedom without obviously opening up paths for evasion. If judicial doctrine and academic scholarship had lingered even briefly on the First Amendment's words, they would have recognized that although the Amendment bars "prohibiting" the free exercise of religion, it forbids "abridging" the freedom of speech. This distinction is crucial because government can work through private parties to abridge, or diminish, the freedom of speech without coercing anyone or otherwise prohibiting that freedom—in particular, without coercively transforming the private action into government action. The distinction thus shows that in speech suits against government, plaintiffs shouldn't have to jump through Blum's hoops.
First Amendment doctrine, however, confuses abridging and prohibiting. It thus aligns the Amendment with Blum's coercion-oriented vision of state action and, like that state action doctrine, invites government to assume it can get away with censorship as along as it is not too coercive.
Incidentally, it will also be seen in Part III that any law abridging the freedom of speech is rendered void ab initio by the First Amendment. Being barred from the outset, such a law is unconstitutional even if it has not yet caused any suppressive effect. Blum is therefore mistaken in requiring plaintiffs claiming unconstitutionality to show suppressive effects.
Although the Constitution's text may often seem to impede practicable approaches to contemporary problems, the First Amendment's text valuably suggests (as will be seen in Section III.D) how courts can apply the First Amendment's bar against government censorship without preventing lawful and useful government persuasion. The Amendment bars government from abridging the freedom of speech, thereby apparently leaving room for government to reduce speech—as long as it doesn't go so far as to diminish the freedom of speech. The Amendment, moreover, applies to law and, by extension, to executive policy (on the theory that policy must be authorized by law); it thus does not bar government action that doesn't amount to a law or policy. In such ways, the Amendment itself allows the government to engage in much persuasion about speech—for example, to ask a newspaper to consider dropping a particular story lest it damage national security. A seemingly intractable difficulty finds at least the beginnings of a sensible solution in the Amendment's text.
Part IV considers the Supreme Court's doctrine on government speech. Although the First Amendment guarantees the freedom of speech as a limit on government power, judicial doctrine seems to justify the executive in claiming a freedom of speech to suppress speech—indeed, without any First Amendment limitation.
Part V turns to qualified immunity. Instead of questioning the doctrine as a whole, this Article focuses on the categorical nature of its protection for officials who do not violate any "clearly established" right—that is, who act within a sphere of plausible ambiguity. The doctrine is categorical in the sense that within the range of ambiguity, it relieves all officials from paying damages for their unconstitutional actions—without considering the sort of power they were exercising or the opportunity they had to consult government lawyers. Such blanket or unqualified immunity, as long as there is some ambiguity, leads officials to believe they can get away with censorship.
Part VI notes the sobering dangers of the current censorship—for the human mind, for elections, for science, and for the collapsing distinction between government and society. Finally, Part VII contrasts two visions of constitutional law—one that is optimistic about human nature and another that is more pessimistic. The one is a constitution of hope, the other a constitution of fear. The U.S. Constitution combined optimism—in its broad grants of power—and pessimism in its limits on power, including its rights. Censorship is so serious a danger that it needs to be stopped in its tracks. Judicial doctrine therefore should have been more attentive to how the Constitution's limits on power are framed in response to fears about human nature, not hope.
Along the way, this Article more broadly questions some fundamentals of twentieth-century constitutional jurisprudence. The Article challenges the need for any generic state action doctrine that is independent of the particular rights at stake. It also contests the coercion model—the archetypical measure of forbidden government severity—that runs through Supreme Court doctrine on state action, constitutional rights, and even governmental structure. Under the influence of these misguided meta-doctrines on state action and coercion, judges and scholars have done much doctrinal damage. Most centrally, in embracing overarching generalities about state action and coercion, judicial doctrine has failed to recognize the First Amendment's distinction between "abridging" and "prohibiting." In such ways, doctrine has endangered freedom of speech and all that depends on it.
The courts, of course, never intended to abandon our constitutional protections; nor did they intend to subject us to censorship. Their doctrines, however, have courted this disaster. Painful as it is to contemplate, judicial doctrine has long been framed in ways that create opportunities for censorship.
Unfortunately, it is doubtful whether the Supreme Court will, or even can, recalibrate these doctrines in time to end the censorship. The Constitution's crucial protections for speech have been altered by twentieth-century doctrine in ways that permit evasion, and the government has taken full advantage of the invitation. It has institutionalized censorship mechanisms that are likely to survive any judicial injunction or other interference. It is therefore not clear how the judiciary can undo the enduring damage.
