The Volokh Conspiracy
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Justice Jackson Seems to Be Charting a More Speech-Restriction-Tolerant Approach
Justice Jackson, like Justice Breyer (whom she replaced and for whom she clerked), seems to be considering an approach that is more embracing of speech restrictions that she views as especially urgent—including perhaps ones that departs from precedents such as the Pentagon Papers case.
In recent decades, the Court has been extremely skeptical when the government, acting as sovereign (as opposed to employer, subsidizer, educator, etc.) tries to suppress speech based on its content. But of course there has also long been a tradition of Justices arguing in favor of allowing restrictions when the government's needs appear especially urgent. Justice Breyer offers a recent example, and of course past Justices had taken similar views. Chief Justice Rehnquist was more embracing of speech restrictions, for instance, especially in his early years. Justice Frankfurter was another example, back in the 1940s and 1950s. (For more on the link between Justice Frankfurter's and Justice Breyer's approaches, see here.)
Yesterday's Murthy v. Missouri argument suggests that Justice Ketanji Brown Jackson may take a similar approach. Recall that the heart of the case is about two related but conceptually separate issues: (1) whether the government coerced platforms into restricting certain user speech; (2) whether, if the government merely substantially encouraged platforms to restrict such speech rather than coercing them, that would itself be subject to First Amendment scrutiny. Most of the Justices asked the lawyers about these two matters, and about related procedural questions.
But several of Justice Jackson's questions raised the possibility that the government may indeed be allowed even to coerce platforms into restricting speech—including speech that doesn't fall within the familiar First Amendment exceptions (such as for true threats or solicitation of crime). Some excerpts (emphases added):
[1.] I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech but not necessarily a total prohibition when you're talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of … a once-in-a-lifetime pandemic.
So … I'm just interested in the government sort of conceding that if there was coercion, then we automatically have a First Amendment violation….
[2.] [T]here may be circumstances in which the government could prohibit certain speech on the Internet or otherwise. I mean, … do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest in how the government has tailored its regulation?
[3.] [W]e have a test for a determination of whether or not the First Amendment is actually violated. So, in certain situations, you know, the government can actually require that speech be suppressed if there's a compelling interest, right? …
[4.] [P]art of the reason why you might be running into all of these difficulties with respect to the different factual circumstances is because you're not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so….
[Y]ou have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it down, tell them to take it down.
I mean, … what about the hypo of someone posting classified information? They say it's my free speech right, I believe that I -- you know, I got access to this information and I want to post it.
Are you suggesting that the government couldn't say to the platforms, we need to take that down? …
[5.] All right. So what do we -- what do we do then in a situation in which -- I mean, I suppose, in this case, we're asking -- the government's point is we didn't coerce. And I appreciate, you know, the debate about that.
But you just seemed to suggest that as a blanket matter, the government doesn't have the ability to, you know, encourage or require this kind of censorship. And I don't know that that's the case….
[6.] So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.
I mean, … what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical [about someone posting a new teen challenge that involved teens jumping out of windows at increasing elevations], you know, kids, this is not safe, don't do it, is not going to get it done.
And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.
So can you help me? Because I'm really -- I'm really worried about that because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can't interact with the source of those problems….
[7.] [Y]ou want us to take the line … to be between compulsion and encouragement and what we're looking at is the government can't compel, maybe they can encourage. I'm wondering whether that's not really the line. The line is does the government, pursuant to the First Amendment, have a compelling interest in doing things that result in restricting the speech in this way? That test, I think, takes into account all of these different circumstances, that we don't really care as much about how much the government is compelling or maybe we do but in the context of tailoring and not as sort of a freestanding inquiry that's overlaid on all of this….
Now, as Justice Jackson notes, there's ample precedent for upholding even content-based speech restrictions (again, imposed by the government as sovereign, and not just as employer or subsidizer or the like) when the restrictions are "narrowly tailored" to a "compelling government interest." But the strength of modern First Amendment doctrine is that the Court has very rarely upheld restrictions on this basis. Consider, for instance, the violent video games case, where the Court struck down (over Justice Breyer's dissent) a narrow restriction on children's acquiring violent video games themselves (without parental participation).
Likewise, speech generally can't be restricted even if it generally persuades people to do harmful things, in the absence of some specific solicitation of crime against a particular target, or the counseling of imminent illegal conduct. And in the Pentagon Papers case (1971), the Court held (6-3) that the government generally can't block the publication even of "classified information."
It seems to me that Justice Jackson would take an approach that's more open to speech restrictions, in order to avoid "the First Amendment hamstringing the government in significant ways in the most important time periods." This would not just be limited to the government trying to persuade platforms or other intermediaries to block third parties' speech, but would include "restrictions of speech," "prohibit[ing] certain speech on the Internet or otherwise," "actually requir[ing] that speech be suppressed," "requir[ing] this kind of censorship," and using "coercion," "compulsion," and "pressur[e]."
Again, other Justices have taken that view. As to "the government … say[ing] to the [newspapers]" that they may not publish "classified information," Chief Justice Burger and Justices Harlan and Blackmun would have allowed the government to say just that in their Pentagon Papers dissent. But it struck me as noteworthy that Justice Jackson was joining this tradition.
