Hamburger Responds: Prof. Somin Repeats His Errors

Round 3 in the debate between Hamburger and Somin over the First Amendment and Murthy

Philip Hamburger, a professor at Columbia, is the CEO of the New Civil Liberties Alliance, which represents most of the individual plaintiffs (mostly scientists) in Murthy v. Missouri.

Hamburger wrote the following post to respond again to Ilya Somin in their ongoing debate (here and here) over Freedom of Speech and coercion. 

[It was edited for tone about 3 hours after original posting, with the changes not shown. –JL]

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 I am grateful to Prof. Somin for his defense of his coercion vision of the First Amendment. He thereby clarifies where we differ.

Text. Prof. Somin's response is strangely indifferent to the First Amendment's text. Prohibiting is a matter of coercion. The First Amendment deliberately distinguished abridging from prohibiting. If as he suggests, the amendment makes coercion the yardstick for the freedom of speech, why did it speak of abridging the freedom of speech? He would have us believe that although it carefully spoke of abridging the freedom of speech, that textual indication should just be ignored.

Prof. Somin concedes that "[t]here may indeed be a meaningful distinction between 'abridging' and 'prohibiting.'" Nonetheless, he persists in introducing a coercion standard by treating freedom as simply the discretion or choice of individuals speakers. But the word freedom should not be interpretated to undermine the distinction between abridging and prohibiting clearly drawn in the text.

Limit on Power. Prof. Somin also persists in treating rights as tradeable commodities, not legal limits on government. To be precise, the First Amendment's freedom of speech was a limit on government, not just a right. Indeed, the First Amendment makes this explicit by beginning: "Congress shall make no law . . ." This conception of rights as limits on power was hinted at in 1785 in the Symsbury Case—a Connecticut decision holding a legislature could not take property even with consent or acquiescence, apparently because that "was Not in the power of the General Assembly Constitutionally to Do."

In other words, private consent cannot relieve the government of the First Amendment's limit on power. Although Prof. Somin is surely correct that an individual can choose not to exercise the freedom of speech, no amount of consent can give government the power to abridge that freedom.

Protected Sphere of Liberty. Prof. Somin also fails to recognize that the First Amendment's speech clauses protected a sphere of liberty, the same for everyone, which government was barred from abridging. This conception of the freedom of speech is evident from the founding era theory about freedom of speech as a natural right. See Philip Hamburger, Natural Rights, Natural Law, and American Constitutions 908-09. The point is not that anyone needs to believe in natural rights, but that government was barred from reducing a protected sphere of liberty, whether by coercion or consent.

One of the dangers of Prof. Somin's vision of freedom of speech is that it lets government buy off its critics. Indeed, it lets government use consent to shrink the speech rights of nonprofits, students, and so forth, so that Americans are without a shared interest in a shared realm of freedom. From his perspective, there is little speech freedom government cannot purchase, and no shared freedom that all Americans can rally around to defend. See Purchasing Submission 107-08 (Harvard 2021).

Misunderstands Terms of Service. Prof. Somin seems to assume that platforms carried out government demands for censorship only after changing their terms of service. That is false; often, the platforms just caved to the government without changing those terms. He also assumes that users can sue for violations of the terms of service; but that usually is untrue.

Not the Platform's Speech.  Even if his coercion-consent theory didn't depart from the text and eighteenth-century conceptions of the freedom of speech, it still fails because it assumes that the platforms are speakers. In his view, the posts on the platforms are their speech, and the government can abridge the freedom of speech as along as it gets consent—that is, as long as it doesn't use coercion.

But the posts that individuals place on the platforms are not the platforms' speech. Not even the platforms argue as much. Instead, they allege that they have a First Amendment editorial discretion—that is, a right of expressive discrimination against their users. Thus, Prof. Somin is unfortunately mistaken in assuming that the posts on the platforms are the platform's speech and that the consent of the platforms is therefore a cure for the suppression. In fact, the posts placed on the platforms by individuals are their speech. Thus, even under Prof. Somin's anti-textual and ahistorical theory, the government should need the consent of the individuals.

Information Asymmetry. Prof. Somin declares his distaste for the shifting notions of consent in contract. My point, however, was not to embrace one view or another, but merely to observe that his vision of a sharp opposition between consent and coercion departs from contemporary legal doctrine and from the medical and psychological literature on consent.

Accuses me of Contradiction. Prof. Somin even accuses me of contradicting myself because I take "an expansive vision of what is prohibited by the First Amendment when it comes to non-coercive government pressure to bar social media posts, but a very narrow one when it comes Texas's and Florida's attempts to force social media firms to host speech they disapprove of. In this latter situation, there is blatant and obvious coercion." I don't think that is a reasonable presentation of my views.

My historically informed view is that, for hundreds of years, common carrier doctrine has applied to communications carriers, and that doctrine has never until now been considered a threat to the freedom of speech. Conceptually, the point is that a conduit is not a speaker. Indeed, the attempts of the platforms to claim editorial discretion founders when one realizes that it is a claim of expressive discrimination against their users.

Excuses Suppression. Prof. Somin perhaps reveals an insufficient lack of commitment to freedom of speech when he says that some speech, such as "misinformation," can be a "public bad." Here he appears not to recognize that much alleged misinformation was true—indeed, was understood to be true by the people suppressing it—and its suppression adversely affected public policy. He also may be thinking the government or the platforms are qualified to be the arbiter of truth. He further reveals his priors when he argues that one should not be too worried about the current censorship regime because it only reduces some expressions of offensive views, leaving other instances online—as if the volume of opinion does not matter, and as if the value of speech is to be measured in bulk, without concern for the suppression of individual voices.

All of this is very disturbing, especially from an avowed libertarian.

Conclusion. Put simply, I believe that Prof. Somin's vision of the First Amendment is wrong—textually, historically, and conceptually. I also think it erroneous to assume that the platform's consent is sufficient under his theory, because the censored speech is the platforms' speech.