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More on Coercion, Social Media, and Freedom of Speech: Rejoinder to Philip Hamburger
Prof. Hamburger continues to conflate coercion and voluntary choice.
Professor Philip Hamburger has posted a response to my critique of his post on the social media free speech cases currently before the Supreme Court. The latter, in turn, responded to my earlier argument that courts should focus on coercion in Murthy v. Missouri. For those keeping track, this is now the fifth post in this series.
In his latest post, Prof. Hamburger accuses me of repeating my "errors." But I remain unrepentant. It is in fact Hamburger himself who has doubled down on his mistakes.
Most notably, he continues to neglect the significance of the fact that the First Amendment protects "freedom of speech." By its very nature, freedom is voluntary choice. Therefore, it cannot be restricted in the absence of some kind of coercion. That's true even if Prof. Hamburger is right (as he surely is) to describe the Free Speech Clause of the First Amendment as a "limit on government." The limit it imposes on government is preventing it from using compulsion to restrict speech. By contrast, it does not prevent the government from using persuasion to influence private speech, or from engaging in coordination with private speakers.
Prof. Hamburger continues to emphasize the fact that the First Amendment bans "abridging" of freedom of speech, as opposed to the ban on "prohibiting" freedom of religion. I agree this means free speech gets somewhat greater protection than religious freedom does. But the thing that it is protected against must still be some form of compulsion. Absent compulsion, there can be no restriction of freedom. the distinction in wording just means that relatively mild forms of coercion that may not rise to the level of "prohibition" might still qualify as "abridgement."
Hamburger claims my view would allow the government to "buy off" its critics. But conditioning government benefits on the exercise of constitutional rights (or refraining from exercising them) raises other constitutional problems. Among other things, it implicates the doctrine of "unconstitutional conditions," which prevents the government (at least in many instances) from discriminating on the basis of speech with respect to the distribution of government benefits. Thus, for example, the government cannot adopt a law restricting Social Security benefits to people who express support for the Democratic Party, or at least refraining from criticizing it. Activities like persuasion or "jawboning" do not qualify as such discrimination.
Prof. Hamburger also doubles down on the dubious claim that social media platforms don't have free speech rights over the material they post on their websites. But, as discussed in my previous post, platforms do in fact exercise editorial control over what speech they allow on their sites, through their terms of service. In that respect, they are similar to media entities like Reason or the New York Times.
Hamburger responds that the platforms sometimes took down speech even without changing their terms of service. But he is missing the point. The existence of terms of service with substantive limitations on the types of speech platforms allow on the site shows that it is not the case that they are "public squares" where anyone can say whatever they want. Rather, they are private property where the owners exercise editorial control over speech. They can do that through terms of service. But, unless prohibited by freely undertaken contractual obligations, they can also do that in other ways.
In his latest post, Prof. Hamburger continues to promote a double standard under which he has an extremely broad view of what is prohibited by the First Amendment when it comes to non-coercive government persuasion to bar social media posts, but a very narrow one with respect to Texas's and Florida's attempts to force social media firms to host speech they disapprove of. He now tries to justify this by claiming that social media platforms are "common carriers." This analogy is badly flawed for reasons I outlined here.
Social media firms have never been legally considered common carriers in the past. And state governments cannot make them so just by legislative fiat. If they could, the same strategy could be used to force other private entities to publish speech they disapprove of, by passing laws declaring them to be "common carriers," as well. Thus, they could force Fox News to air more left-wing views, compel the New York Times to publish more right-wing ones, and so on.
Prof. Hamburger accuses me of departing from libertarian principles, due to my focus on coercion. But the distinction between coercion and voluntary action is actually fundamental to libertarianism—and, indeed, to most other forms of liberalism. It is, in fact, usually opponents of libertarianism—particularly left-wing ones—that seek to efface the distinction between the two, thereby justifying government intervention to protect people against supposedly oppressive voluntary relationships. Such arguments are a standard justification for restrictive labor regulation, for example, where it is said that voluntary agreements to work more than certain amount of hours or for pay below the minimum wage are actually "exploitative" coercive.
Finally, Prof. Hamburger complains about my pointing out that speech can be a "public bad," and worries that it is somehow a justification for suppression. I think it is pretty obvious that at least some speech is a public bad, in so far as it can lead to horrific government policies. That was true of Nazi and Communist speech, for instance.
It doesn't follow that the government is justified in suppressing such speech. Even speech advocating awful ideas is still an exercise of an important individual liberty. And there is—to make an obvious point—good reason to distrust government judgments about which speech is harmful and which is not. Thus, there should be at least a strong presumption against allowing the government to deal with this public bad through coercive censorship.
By contrast, the use of non-coercive suasion—whether by the government or private parties—doesn't pose anything like the same risks. Private entities who differ with the government's position will remain free to publish opposing views. And so long as there is a market demand for such views, there will be incentives to publish them. If the government persuades, say, Twitter or Facebook, to take them down, that just creates a market incentive for others to publish them.
In sum, there is good reason to worry about government use of coercion to either suppress speech (as the Biden Administration may well have done in Murthy v. Missouri), or to compel it (as Texas and Florida are trying to do). But the First Amendment does not bar the government—or anyone else—from using non-coercive persuasion.
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1. It seems to me that, logically, the platforms’ 1st Amendment rights are irrelevant here. They are not in court defending their rights, and the plaintiffs are not suing them to demand that they must publish the plaintiffs’ comments. The argument is between the government and the folk whose speech the government is trying to suppress. So the question of when and whether the platforms have 1st Amendment rights or should be treated as common carriers or whatever is one for another day.
2. Thus we can make the analogy with any other “instrumentality” of speech, that a speaker might wish to employ to say his piece. So – pens, typewriters, airline tickets to make a speech, venues to make a speech at and so on.
3. So let’s take airline tickets for example. Suppose the government hears that, say some excitable politico – say AOC or MTG – plans to make a speech in Tucson that is not likely to cause a riot but may cause the government great inconvenience. Can a government official call up all the airlines that fly to Tucson and say – don’t let AOC/MTG on your plane to Tucson. We don’t want her to make that speech.
4. Is that official “abridging” her freedom of speech ? It seems to me pretty obvious that he is. The intent of the official is undeniable. He is trying to prevent AOC/MTG making that speech by interfering with the instrumentalities of her speech. Does it matter that the provider of that instrumentality is legally entitled to refuse to sell AOC/MTG a ticket ? I don’t see that it does. The question is not whether AOC/MTG has an unconditional constitutional right to be flown to Tucson. It’s whether the government is abridging her freedom of speech by trying to prevent her getting there. Absent plain evidence to the contrary, the government official is the causa causans of the abridgement. (The government would of course be entitled to bring forward evidence that the airline would have chosen to deny service to AOC/MTG even if no one from the government had called them.)
5. And it seems to me that the answer is the same whether the government official tries to coerce the airline, by mentioning some vague regulatory threat, or by offering it $100,000, or just by persuasion and cajoling. Again we are not concerned about the instrumentality provider’s position – just with whether the government official is trying to abridge AOC/MTG’s freedom of speech.
6. So that leaves us with “Congress may pass no law”
7. The government official derives his office or employment from a Congressional law. Congress either created the office or funded the employment or both. With a law. If the official uses a government phone or email or acts from a desk paid for by the government, the money comes from a Congressional law. So using his job title or his job phone or his job email or his desk is an “as applied” 1st Amendment abridgement of the speaker’s 1st Amendment rights – though the Congressional laws funding the official and his accoutrements are not – or very likely not – facially unconstitutional.
8. But if the government official does the cajoling privately, without using any government resources, then it would seem to be a private action, not traceable to Congressional acts.
Your analogy is flawed because the above statement is wrong. Unlike Twitter, an airline is a common carrier.
Not according to Hamburger’s theory/the theory of this lawsuit. Their theory is that a government official asking (not telling) the airline/social media company to do this is itself a violation of the 1A.
1. “Your analogy is flawed because the above statement is wrong. Unlike Twitter, an airline is a common carrier.”
The analogy with the government official trying to get Tucson venues not to let AOC/MTG use their premises will do just as well. As would interfering with any other instrumentality provider.
2. “Not according to Hamburger’s theory/the theory of this lawsuit. Their theory is that a government official asking (not telling) the airline/social media company to do this is itself a violation of the 1A.”
Well, I am describing Moore’s theory, as I usually do. And Moore’s theory that the difference between coercing the instrumentality provider, paying him, or persuading him is irrelevant. What matters is whether the government causes the abridgement by acting so as to change the behavior of the instrumentality provider.
What matters is whether the government causes the abridgement by acting so as to change the behavior of the instrumentality provider.
That doesn’t work. The whole point of persuasion is to change behavior. What would be the point in the government issuing any statements if they weren’t permitted to change anyone’s behavior?
Imagine the government issues a statement that “The dossier is Russian propaganda and isn’t credible” and that
causes
Facebook to take down posts citing the dossier as evidence of a presidential candidate’s poor judgement. Ridiculously, a First Amendment violation under Moore’s Theory.The whole point of persuasion is to change behavior. What would be the point in the government issuing any statements if they weren’t permitted to change anyone’s behavior?
There are a thousand and one things that the government might choose to say that are intended to influence people’s behavior. It’s only a problem when the change of behavior sought is to get the provider of an instrumentality of speech to deny their services to a speaker. The provider is of course entitled – subject to public accommodation etc laws – to deny service sua sponte.
Ah so to you it comes down to motive. That also doesn’t work. The oral argument tossed that around a bit, as did Jim Jordan on 60 Minutes.
Trying to discern the government’s motives in these cases isn’t practicable. Take this classic example for example.
Social Media Companies: Dear CDC, please let us know whether ivermectin is effective against COVID so that we can take down the posts that are saying the factually wrong thing.
CDC: I can neither confirm nor deny the effectiveness of ivermectin under these circumstances.
I don’t think what the government is trying to achieve is “motive” – that would be purpose or object. And I don’t see why it would be difficult to ascertain, particularly in a case where it says explicitly “we want you to take that down.”
I am unable to discern what your “classic” example is intended to demonstrate.
When Facebook calls up the CDC and says “We want to take down bad posts. Tell us whether ivermectin is effective” and the CDC responds with “Ivermectin is not effective” so Facebook takes down posts saying that it is,
1. The statements by the CDC caused censorship
2. The CDC
sought to get the provider of an instrumentality of speech to deny their services to a speaker
… right? Or not?If you don’t think so, then what if at the same time that was going down at the CDC, the White House Press Secretary was saying things publicly like “It sure would be great if social media would take down false medical advice!” No posts are taken down because of that statement, but it would seem to provide the improper purpose element…?
I think (and this also came up in oral argument) you’re going to have a hard time identifying a singular “purpose” within the government. If one official has an invalid purpose, does that taint the entire government? Why or why not? Neither answer really works… unless you’re a believer in the magic word theory of liability where the government can say anything as long as it doesn’t explicitly say “Please take down this specific user’s post.” So like, “Ivermectin is ineffective. Misinformation is a problem.” would be fine since it’s up to the social media provider to infer that oh, maybe we should take down posts that say ivermectin is effective…?
How is this any different from different guys in the organisation saying “Bugsy is a real pain”, or “if a bolt of lightning were to strike Bugsy, I can’t say I’d be weeping.” Sure there may be cases where it is difficult or impossible to prove that the government’s purpose was to get the instrumentality provider to take someone’s post down. But there may be other cases – such as when the government says “please take this post down” cf “I want you to take Bugsy off to sleep with the fishes” when it’s not so hard.
As for different bits of the government saying different things, again, why does that matter ? If some bit of the government intentionally causes facebook to take some speech down, then that’s a foul even if other bits of the government say different things. It’s hardly uncommon for the permanent bit of the government to sing a different tune from the temporary bit.
If you – South Side chapter – ice Bugsy, the fact that the guys in the North Side chapter didn’t want Bugsy iced is no defense for you.
That the government acts – pursuant to powers/funds etc provided by Congress – with the purpose of abridging someone’s speech, and succeeds in its aim, is an entirely adequate test of whether the speaker’s 1st Amendment rights have been abridged. That it may be difficult to prove in some cases is ….. like most of the rest of the law. Including bringing Bugsy’s killers to justice.
“Ivermectin is ineffective. Misinformation is a problem.”
Which is a good example of the power of inference. The second sentence gives excellent evidence of the government’s purpose in publishing the first sentence.
Exactly. Which under the Moore Theory means that it’s pretty much impossible for the government to ever say anything. Not only that, any publisher can prevent the government from saying anything.
Imagine I run Patriot Social, and my Terms of Service is “no posts contradicting the government,” and I publicize that principle. Now any time the government makes a statement, they know that I’m going to take down all the contradictory posts. So they can’t make any statements at all.
If you can distinguish that from the examples above, which you said were examples of abridgement of speech, please try. I don’t think you can, in which case your theory leads to government silence.
Now any time the government makes a statement, they know that I’m going to take down all the contradictory posts. So they can’t make any statements at all.
No. Refresh your recollection on the doctrine of double effect.
Since, as you point out, the government can’t say anything without that causing Patriot Social to take down contrary posts, it is reasonable to infer that achieving the taking down of posts is not the government’s purpose in saying whatever it said. That’s quite the opposite inference from “Ivermectin is ineffective. Misinformation is a problem.”
If the mob puts the word out that if any pigeons give evidence to the Waterfront Crime Commission about their control of the union at the docks, the stoolies are gonna find themselves pushed off some tall buildings, it is not reasonable to infer that the stoolies purpose in giving evidence is to achieve a highly contrived form of suicide. It just means they’re willing to take the risk in what they see is a good cause.
My original example was Facebook says to the CDC: we want to take down wrong medical information so let us know please whether ivermectin is effective and the CDC says, it’s not effective.
You said that counted as abridgment, how is it different from Bugsy etc. etc. Are you saying you want to clarify your testimony? Because I don’t see how it’s different from Patriot Social.
You said that counted as abridgment, how is it different from Bugsy etc. etc.
You misunderstood. “How is it different from Bugsy” meant – you have to examine the context to infer the purpose if the purpose is not stated explicitly.
In the case of Facebook and Ivermectin you had two different formulations – one was that the CDC answered Facebook’s question having been put on notice that facebook intended to take down posts that the CDC said contained incorrect information. The other was where the government followed up its comment on the effectiveness of Ivermectin, with an immediate further comment that misinformation is a problem. The second case allows an easy inference as to the government’s purpose. The first case requires further work.
eg was the CDC answering Facebook’s question in accordance with its normal policy ? Does the CDC usually answer questions like that from media organisations ? How quickly ? What procedures does it follow for providing answers ? What internal records are there as to what was discussed within the CDC before answering ? If the CDC typically answers these questions in the same way that it answered Facebook’s question, when the questioner does not attach the information that it plans to use the answer for censorship purposes, then it will be difficult to prove that the CDC’s purpose in answering Facebook was to achieve an abridgement. Maybe the CDC just has a practice of hopping to and offering its opinion on the effectiveness of medical treatments whenever it is asked.
As I have said before, the test is whether the government had the purpose of achieving an abridgement. But to win its case, the speaker needs to be able to show that that was indeed the purpose. Even when the government actually does have the naughty purpose, that will sometimes be harder to prove than in other cases.
This is no different to any other kind of legal case. The legal test is one thing. Assembling the proof that the test is met is another thing. I don’t understand why you think this is a difficult idea.
Ok so now it’s this:
Facebook goes to the FBI and says, we’d like a list of possible foreign agents to ban, and we want you to keep us updated over time as you discover more and more foreign agents. And the FBI complies.
This is really no different from the CDC example in terms of the intent an culpability of the government. Still ok?
This is no different to any other kind of legal case. The legal test is one thing. Assembling the proof that the test is met is another thing. I don’t understand why you think this is a difficult idea.
Two reasons. One is I think it’s the wrong standard because I think the government actually does, in all these cases, want the speech suppressed. So you’re trying to draw this line where if the government wants something and takes an action to make it happen and it happens, that’s not an abridgement of speech, but if the government wants something and takes an action for the purpose of making it happen and it happens, that is an abridgement of speech. I think that’s a retarded and impossible line.
The second is, normally when cases are looking at intent they’re looking at a single person’s intent. I don’t think
the purpose of the government action
is discoverable or even necessarily well-defined compared to that of an individual. Your examples are informative. They’re all backwards… you don’t have the plaintiff proving intent, you have the defendant trying to prove lack of intent. It’s bizarre.Facebook goes to the FBI and says, we’d like a list of possible foreign agents to ban, and we want you to keep us updated over time as you discover more and more foreign agents. And the FBI complies.
Are the TV networks also going to the FBI and asking for a constantly updated list of foreign agents so that they can invite them onto their shows to be interviewed ? And is the FBI complying with those requests ? If so, it looks like the FBI doesn’t have a censorship purpose, it just answers everyone’s questions about foreign agents.
Although of course if there are internal memos and emails indicating that the FBI is answering Facebook because it wants Facebook to ban those foreign agents then that would be enough to show purpose.
So you’re trying to draw this line where if the government wants something and takes an action to make it happen and it happens, that’s not an abridgement of speech, but if the government wants something and takes an action for the purpose of making it happen and it happens, that is an abridgement of speech. I think that’s a retarded and impossible line.
Me too. Not sure where you got that imaginary line. The actual line is when the government takes an action that may have the effect of making something happen (like a ban) and is aware that the action may have that effect, but the goverment does not have the purpose of creating that effect. As against when it does have that purpose. If the doctrine of double effect is too tricky for you, consider the Israelis bombing bits of Gaza. (Or the Allies bombing Berlin.) They do not do it for the purposes of killing innocent Arab civilians, they do it for the purpose of killing Hamas terrorists. But they know that a certain amount of collateral damage is to be expected. But should they land one of their missiles and it takes out 23 terrorists and kills or injures zero innocent civilians – they’re delighted. As against when Hamas or Hezbollah shoot one of their missiles into Israel. If it narrowly misses a bus carrying 53 Jewish schoolchildren, they’re not delighted. They’re pissed. From this we can infer their purpose.
The second is, normally when cases are looking at intent they’re looking at a single person’s intent.
You made this point before and it’s no more persuasive this time around. if there’s one government official calling up Facebook et al trying to get people banned, while there’s 250,000 other government officials who are not, and don’t want anyone banned, then the one goverment official to the extent that he is doing his stuff in his official capacity is breaking the rules, and the government through him is breaking the rules. If there’s damages the goverment is liable. If there’s an injunction to stop a repetition the government is bound by it – and if they don’t have the purpose of banning speech why should they even oppose such an injunction ?
After writing all that and using Gaza as an example, it occurs to me that there’s a much simpler and more obvious illustration of the distinction between “purpose” and “predictable effect.”
When you go into a store to buy something – let us say a pound of oranges your purpose is to become the proud owner of a few oranges. But you know that you are going to have to pay some money to get the oranges – you’re going to spend a couple of bucks. That is an entirely predictable effect of your purchase. But it’s not your purpose. If the store was handing out oranges for free, you’d be fine with that.
The key difference between this situation and your Gaza and oranges examples (which you keep ignoring for some reason) is that in this case, the government definitely wants the double effect. Israel doesn’t want to kill civilians, I agree. I don’t want to part with my two dollars. But the FBI definitely does want the foreign agents banned. The CDC definitely wants medical misinformation taken down.
That’s where you get to my articulation of your line. You’re trying to draw a line between
I wanted something and I purposefully took an action to get it
vsI wanted something and I took an action to get it
. That’s just silly imo.If the government acts with the purpose of getting an instrumentality provider to abridge a speaker’s speech, and its efforts succeeed, then the government is abridging the speaker’s 1st amendment rights. All the speaker now has to do is prove that the government’s purpose is indeed that.
You just seem to have a rather low bar – lower than me, and I suspect lower than the courts – for inferring that purpose. So to summarise, when the government acts and an instrumentality provider bans :
Case 1 – the government wants the speech banned, and there is clear evidence (inferential or otherwise) of its purpose
Case 2 – the government wants the speech banned, and there is no clear evidence (inferential or otherwise) of its purpose
Case 3 – the government does not want the speech banned, but the ban is a forseeable consequence of the government action
Cases 1 and 2 are 1st Amendment fouls, but in Case 2 the speaker should lose in court because he cannot prove his case. Case 3 is not a 1st Amendment foul.
You seem to think that Case 3 is a set with no members. I do not. It is pleasant, for once, to find myself not quite the most cynical man in the room.
I’m sure case 3 has members. It’s just not an interesting case.
I simply disagree that a) distinguishing between cases one and two is at all practical, as can be seen in the litigation at hand. What was the CDC’s purpose, for example? Did it start in case 1 and move to case 2 over time as the administration became more reliant on the program? Does it matter if the administration became reliant if nothing changed at the CDC? Does it depend on exactly which official was carrying out the program on any particular day and whether they agreed or disagreed with the administration’s censorship agenda?
And b) these aren’t the sort of questions that free speech rights do or should depend on. An abridgement is an abridgement whether or not someone in the administration happened to have intent. The First Amendment says “make no law” not “have no purpose.” It’s the effect of the law that matters, not its purpose (except when the purpose might save the law as a compelling interest under strict scrutiny).
Can a government official call up all the airlines that fly to Tucson and say – don’t let AOC/MTG on your plane to Tucson. We don’t want her to make that speech. Is that official “abridging” her freedom of speech ? It seems to me pretty obvious that he is.
It seems pretty obvious to me that he isn’t. Officials can call people up and say whatever. You guys are so nervous about what officials say on the phone! Things said on phones by officials don’t have some sort of special brainwashing power. The airlines will laugh this particular official off the phone and probably out of his job. What are you even talking about?
Let’s start at the beginning.
What, precisely, does it mean to abridge speech?
What makes abridge different than coerce, prohibit, or compel?
How can I tell if my speech was abridged, but not prohibited, coerced, or compelled…is there a bright line that tells you when speech is abridged?
“abridge” means to abbreviate, cut short, curtail – thus it encompasses any kind of pruning exercise, applied in this case, to the freedom of speech. It is not specific as to the means.
“coerce” means persuade with threats, intimidation etc. Actually using force is sometimes included but usually inhabits a different category, though this can get a bit metaphysical. So if I want to get into your house, I can beat the door down and march in. That is not coercion, it’s just force. But if I phone you and say – let me in, or your cat Midgely is gonna get it, that’s coercion. I am working on your mind to get you to let me in, I’m not beating the door down. Or I might actually capture Midgely and start torturing him outside your home, telling you I’m only going to stop when you let me in. That – although force is used (on Midgely) – is coercion, because by applying physical pressure to Midgely, I’m applying psychological pressure on you. You still get to decide whether to open the door.
“Prohibit” means make unlawful, though it can also be applied to other sources of authority such as religions. It’s a statement from a legal or moral or religious authority that you may not do X, usually backed up by some kind of punishment for transgression.
“Compel” is a looser word which can encompass the opposite of prohibit – ie a legal/moral command to do rather than not to do – but it can also include physical compulsion – ie say you are estranged from your Mom, and I offer you a lift to the movies but actually drive you to a rendezvous with your Mom, I am compelling you to meet her. It can also be extended to really persuasive coercion, where you formally still have a choice, but actually don’t.
How can I tell if my speech was abridged, but not prohibited, coerced, or compelled…is there a bright line that tells you when speech is abridged?
Yes – the bright line is : did the scope of your freedom of speech get smaller ?
So suppose the government charges you a $250 tax every time you say “Minnesota.” Have you been prohibited from saying “Minnesota” ? No it just comes with a cost. (If the tax is $8 billion then I think you can say you’ve been prohibited.) Have you been coerced ? Certainly. Compelled ? Probably not. But if you want to talk about Minnesota and are deterred by the tax into using the euphemism “the Land of 10,000 Lakes” you can make a case for saying you’ve been compelled to use that circumlocution. Abridged ? Sure.
What sort of thing might be an abridgement without there being any prohibition, coercion or compulsion ?
Well, there you are on your soap box, making your speech about the lizards who control society on Earth, and someone turns on a really loud sound system blasting rock music, so that no one can hear what you are saying. If the someone is the government (or an agent thereof), and the purpose is to drown you out, then your 1st Amendment rights have been abridged – but without coercion (no one is applying psychological pressure to get you to change your behavior) without prohibition (there’s no law prohibiting you from speaking) and without compulsion (nobody’s forcing you to do anything.) It has just been arranged that you cannot be heard.
What a great, and complete answer.
Moore’s Theory has legs. 🙂
Lee Moore, does the platform enjoy a right to agree with the government? And on that basis refuse to publish a would-be contributor’s comment to the contrary? If so, on what basis could the would-be commenter sue the government?
Lee Moore, does the platform enjoy a right to agree with the government?
Of course (unless it’s a common carrier which we are leaving on one side today.) The question is whether the government has a right to attempt an agreement with the platform that it will block someone’s speech.
The actions of the platform are not the issue. The actions of the government are.
The problem is that there’s no injury to the plaintiffs from the actions of the government, unless their persuasion/coercion/etc. is successful. If someone from the government calls up Twitter (etc.) and says something to them and Twitter or whoever says, “Nah, we disagree; these tweets are fine. We’re not removing them,” then the plaintiffs suffered no harms at all.
The problem is that there’s no injury to the plaintiffs from the actions of the government, unless their persuasion/coercion/etc. is successful.
If I were to mock a police officer and he chose to unlawfully discharge his firearm with the intent to silence me, it is asinine to assert that I suffer no injury unless the action is successful. If I write a factual post mocking a police officer and his department submits an official request it be taken down for public safety, it is an equally, if less life threatening, abuse of authority. It is a deprivation of rights under color of law.
What if he just imagines shooting you? Is that an injury in fact? An abuse of authority?
Do expect me to answer your fallacious absurdity? If you want to engage in honest discourse, behave better.
What right were you deprived of, in this hypothetical?
What right were you deprived of, in this hypothetical?
I assume you are being deliberately obtuse. I cannot fathom any interpretation where removing a post does not qualify as “abridging the freedom of speech”.
I would further argue that it is no less a deprivation of my right to free speech if the attempt to have my speech removed fails. Just like it is no less a deprivation of my right to life if an attempt to shoot me fails. In both cases, the intention of the actor to deprive me of my right can be inferred from the actions taken.
In support of my arguments, I would offer that, the 1st amendment being incorporated under the 14th, “Congress shall make no law” means that no agent of federal or state government can claim to be authorized in taking any actions that abridge free speech. A takedown request from a government agency, or by a single actor in their capacity as an agent, is a deprivation as an unauthorized attempt to interfere with a contract between two parties.
I will add that the judiciary does not seem to be similarly constrained by the Constitution. If the agent obtains a warrant, they would have authorization.
I would further argue that it is no less a deprivation of my right to free speech if the attempt to have my speech removed fails.
This is the concept which prompted me to ask you above, in all seriousness, why isn’t it a similarly a deprivation of your right to free speech of the department types up an official request for your post to be taken down but then forgets to hit “send?” Or sends it to the wrong address. Or considers typing it up but then gets distracted.
If all that matters is the
intention of the actor to deprive you of your right
then it seems like just thinking about it would be enough. If that’s not enough, then what needs to actually happen in order for your right to have been abridged? You’ve said it can be abridged even if your post isn’t actually taken down. What’s the threshold?You claim seriousness, but offer more absurdity. If they just think it, get distracted, or type it up and don’t send it, they have taken no action. If they send it to the wrong address, the action is most likely moot unless it somehow comes to light.
It is not the actor’s intention that deprives me of the right. It is the actor’s actions intended to abridge my speech that deprives me of my right. I provided an appropriately similar situation in my first post. Saying, “you need to die” is not attempted murder. Saying it while pointing a gun at someone and pulling the trigger but missing is attempted murder. In both scenarios, the intention is the same. It is the action, even in failure, in addition to the thought that invokes a consequence.
Why would an action be moot if sent to the wrong address but not if sent to the right address and ignored by the recipient?
Anyway, this is the first time you’ve brought the legal concept of attempted crime into the conversation.
I can tell you that typing out a ransom note but then chickening out and throwing it away would still be enough to find you guilty of attempted kidnapping in most jurisdictions. So now I’m really confused. I don’t think you have any idea what you mean yourself. You’ve got an idea that feels good to you in the darkness of your mind, but it shrivels up when exposed to light and air.
Why would an action be moot if sent to the wrong address but not if sent to the right address and ignored by the recipient?
A notice sent to the wrong address is a scenario used in textbooks to explain the concept of mootness. If sent to the correct address, it may not be honored, but it won’t be ignored. The recipient must expend time and effort to consider it and there is always a chance the recipient will capitulate out of ignorance, be intimidated by authority, or use it as justification because they also don’t agree with the speech.
Anyway, this is the first time you’ve brought the legal concept of attempted crime into the conversation.
That is a completely disingenuous representation. The scenario I presented in my first post was a clear description of attempted murder. I expounded on that in my next response with, “Just like it is no less a deprivation of my right to life if an attempt to shoot me fails.” It has been present through the entire thread.
I can tell you that typing out a ransom note but then chickening out and throwing it away would still be enough to find you guilty of attempted kidnapping in most jurisdictions.
As an element of a conspiracy, maybe. A tossed away note by itself is not going to demonstrate that a true threat exists. But you seem to be losing the plot. Your example supports my premise that a failed act is still a deprivation.
So now I’m really confused.
Now? I have continued to present logical arguments and all your responses relied on the absurd.
I don’t think you have any idea what you mean yourself. You’ve got an idea that feels good to you in the darkness of your mind, but it shrivels up when exposed to light and air.
Is this really how you attempt to persuade people? Through gaslighting and mean spirited jabs at their self esteem? You flail around long enough any sane person will eventually tell you to fuck off and you can slink away thinking that you have won
I’m not the one flailing. You keep using legal jargon you don’t understand. Conspiracy. Mootness. Attempt. True threat. Right. You got each of those wrong in just one post.
Cases are moot, not actions. It doesn’t even parse for an action to be moot.
Conspiracies are unrelated to anything in this conversation. True threats are unrelated to elements of a conspiracy to kidnap.
Attempted murder may be a crime, but it’s not a deprivation of anyone’s rights. And attempted crimes are just that: crimes. The concept of an attempt doesn’t carry over to civil rights jurisprudence. There’s no such thing as attempted prohibition of free exercise, for example.
Hope that helps!
You keep using legal jargon you don’t understand.
I am not parsing legal jargon. I am engaging in a debate. A question can be moot. A point can be moot. An action can be moot. It is interchangeable with irrelevant. “True threat” is the only technical term I incorporated and I remain unconvinced that it does not apply. Mostly because you are full on trying to gaslight me.
For example:
Attempted murder may be a crime, but it’s not a deprivation of anyone’s rights. And attempted crimes are just that: crimes. The concept of an attempt doesn’t carry over to civil rights jurisprudence. There’s no such thing as attempted prohibition of free exercise, for example.
The Justice Department disagrees with you. Attempted murder can incontrovertibly be considered a deprivation of rights under color of law. I understood it without doing any research, but the validation is satisfying. Does that change your position?
Well mostly I agree, no harm no foul.
But there is also the chill factor. If it is known that the government is likely to try to get Twitter to ban tweets taking a particular line and has been reasonably successful in its efforts, on previous occasions, a speaker may be chilled into modifying his comments to avoid the risk of a ban, or may not bother at all.
Of course if the government successfully keeps its cajoling secret, so that tweeters are not chilled cos they don’t know the government is all in on trying to get their views censored, then the government has a chill defense.
Ilya,
I edited Philip Hamburger’s response originally posted a few hours ago (which you are responding to here) in order to soften its tone. I added a note indicating that changes were made for tone. Nothing of Philip’s that you quote here was changed.
Best wishes,
Jim Lindgren
Why would you do that? Editing “to soften the tone,” without at minimum showing the changes, is Orwellian enough. But did he even ask you to do it, or was the tone policing your unilateral choice?
That level of conduct is standard at the Volokh Conspiracy.
Eugene V. and I both thought that the tone was a bit sharper than is common here at Volokh. Philip Hamburger, who was not able to do revisions this afternoon, asked me to do it for him. Hamburger is generally a fan of Somin’s work on other topics.
Did Prof. Hamburger call for those with whom he disagreed to be lined up and shot, raped, placed face-down in landfills, exterminated, pushed through woodchippers, sent to Zyklon showers, shot in the face as they answered front doors, or lynched? If not, it is difficult to take seriously a claim that the “tone was a bit sharper than is common here at Volokh.”
(Given the regular, graphic calls for political murder and bigoted violence from this blog’s right-wingers, there is no need to rely on racial slurs, antisemitic content, gay-bashing slurs, transphobic bigotry, Islamophobic content, misogynistic slurs, xenophobic slurs, white nationalist content, or other regular features of the Volokh Conspiracy in order to advance this point.)
Now I need to read it. 🙂
Here are two statements by the government. Which, if any, are coercive? Which are merely persuasive?
Government Statement #1:
“The police department strongly advises all community members and business owners to vet information before posting it to social media. If you have questions .. please contact the department’s public information officer before sharing it.”
Government Statement #2:
“The administration demands that technology platforms stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections. Platforms could face a robust anti-trust program to ensure that this type of misinformation is not going out to the American public.”
These are not hypothetical examples, they are both real.
These are not hypothetical examples, they are both real.
Almost certainly a lie. They don’t show up on Google at all. Perhaps you paraphrased, but then of course that gave you an opportunity to spin them. You need to provide a cite.
The social media firms and the consumer have a contractual relationship, the firm provides the platform, the consumer provides the content and the eyeballs. That contract is currently governed by the terms of service
The question, to me, is can the state mandate consumer protections to protect the consumers rights in that contractual relationship, and protect the consumers rights in the content they create.
Visual Artists Rights Act of 1990 (VARA), protects the rights of Artists in creations they no longer own, including murals on buildings.
https://www.artsy.net/article/artsy-editorial-5-pointz-artists-won-675-million-lawsuit-developer-destroyed-work
I don’t see conceptually any difference protecting the work of artists that they don’t own, on others buildings, than protecting the rights of consumers in the creative content and ideas they create on social media platforms.
The question, to me, is can the state mandate consumer protections to protect the consumers rights in that contractual relationship, and protect the consumers rights in the content they create.
Of course it can.
Good, then it means the state can mandate when i, as the creator put my content on Facebook, then that’s an offer and an acceptance, and the state can then regulate the terms.of.the contract and not allow.FB to unilaterally suppress my content.
Of course. They regulate that kind of thing all the time. They haven’t done it here, nor are they likely to since it would be industry-destroying, so it’s sort of academic.
That’s what the Texas and Florida laws did saying the consumer had a right in their content and limiting the ability of the Social Media companies to take it down.
Those laws were content-based. You can regulate contracts and the rules of the road. You can’t regulate content.
Your comment is made at too high a level of abstraction to really address, but the general response is: the 1A (as well, of course, as Section 230) constrains the ability of the state to “regulate” in this area. A state cannot tell a bookstore what books to sell based on the pretense that it is just regulating the terms of the contracts between the bookstores and the publishers. Just like it cannot tell a website designer what websites to design based on the pretense that it is just regulating the terms of the contracts between the designer and its customers.
Every interaction with a coercive monopolistic government is backed by coercion. That is the nature of coercive monopolistic government. To pretend that any interaction is voluntary is the thinking of a child.
Disaffected, anti-government cranks are among my favorite culture war casualties.
All governments operate via coercion. There are penalties for crimes or lack of obedience. To want more government is to want slavery on plantations with masters in charge – whip them if they raise their heads, brand them for speaking, and take their women to clear them up. This is today’s Democratic Party – masters with slaves.
This says more about how you think governments should work when you’re in charge than anything else.
By contrast, it does not prevent the government from using persuasion to influence private speech, or from engaging in coordination with private speakers.
I perceive a disservice being done by failing to discriminate between government and government actors.
Government actors have their own free speech rights and the nature of their role should not prohibit them from exerting influence through their own protected speech (nor protect them from consequences). However, when multiple governmental agencies coordinate efforts in requesting that posts containing specific viewpoints be suppressed, that is not persuasion by an individual. It is an abridgement of free speech. The coordination of efforts by actors within the government is not equivalent to the coordination of private citizens.
No, nobody’s talking about government officials acting in their personal capacity. When Ilya says “government,” that’s what he means. The government itself can undertake efforts to persuade.
Your comment is dismissive without being dispositive. Read the part in bold and try again.
Where’s the authority to persuade to the point of abridging “speech?” —-> There is no authority. A1 is for defining starting points with A9 and A10 as backups to further prohibit governmental authorities. No blank check can ever be so construed as to regard it as so.
Governments can never create their own authorities; that perversions have taken place in over the last 100 years is not a justification to further abuses and perversions to our federal system.
Persuasion always abridges speech in your and Hamburger’s extremely sensitive definition of “abridge.” If you were going to say
The earth is flat.
and the government convinces you otherwise so you don’t say it, then your speech was abridged.
This logic leads to a place where the government can say nothing at all for risk of abridging the speech of… somebody.
1. That depends on whether the government was trying to convince you that the earth is not flat for the purpose of calming your fears that you might drive off the edge; or for the purpose of getting you to stop saying that the earth is flat.
2. If the government persuades you not to say something, you are still free to say it. (As opposed to the case where the government persuades Facebook to stop you saying it.) You have just decided not to. In that case the question of abridgement will indeed come down to the matter of coercion. If the government persuades you by its argument, then you remain free to speak.
If the government pays you not to speak then the question is whether the contract is enforceable – ie if the government pays you now, to shut up about Ivermectin for a month, and you take the money, I’d be doubtful that they could enforce the contract in the face of your 1A rights. But if they agreed to pay you in arrears – after you had shut up for a month, then I assume you could enforce the contract.
That depends on whether the government was trying to convince you that the earth is not flat for the purpose of calming your fears that you might drive off the edge; or for the purpose of getting you to stop saying that the earth is flat.
What if it’s both? The government almost certainly does want you to stop saying the earth is flat, since that’s contradicting the message it’s trying to send.
As we figured out above, your “purpose” test doesn’t work in practice.
No we didn’t. We figured out that sometimes it is difficult to prove purpose. But not always. In the case currently in question, the government’s purpose could not have been clearer.
The government’s purpose will almost always include an intent to keep people from speaking in a way that’s contrary to the government’s position. That’s practically an inherent part of trying to convince someone of your message — that they’ll stop speaking out against it.
So purpose can’t be the rule, unless you’re ok with the result that government simply can’t express its opinions in general.
This is bananas. Here we are discussing this thing. My purpose is to explain my position, perhaps persuade you that you are wrong, and perhaps persuade others that I am right and you are wrong. Perhaps even to modify my own position should you have anything sensible to say.
But I am not trying to stop you saying what you think, and if you continue to think what you currently think, you are very welcome to go on saying it. Moreover, since I do not control what gets posted on the VC I have no conceivable expectation that I can prevent you saying whatever you want to say.
And – as mentioned elsewhere in this thread – there is a difference between persuading you that you are wrong so that you voluntarily stop saying what I think is wrong – which involves no abridgement of your freedom of speech – and persuading the Volokh Conspiracy that your posts should be taken down, even if you continue to want to express your erroneous opinions.
Participating in an argument does not betoken any intention to silence the person you are talking to. Indeed part of the point is also to listen, in case the person you are arguing with has something interesting to say that might make you change your own mind.
I agree it’s bananas. But you’re the one who said
That depends on whether the government was trying to convince you that the earth is not flat ... for the purpose of getting you to stop saying that the earth is flat.
Of course the government is trying to get you to stop believing — and saying — that the earth is flat. So if it actually
depends on
that, then it’s bananas.so just to be clear, petitioners in the social media case want SCOTUS to say the 1st amendment restricts persuasive speech from our democratically elected government, but large corporations can still flood political races with as much dark money as they want.
This is just dictatorship by other means.
The 1st Amendment protects us from the government abridging our speech.
Why be constrained by the actual text of the First Amendment (“Congress shall make no law…abridging the freedom of speech”) when those more learned in such matters can simply amend the language, “Congress shall make no law…restricting the freedom of speech by some form of compulsion but absent compulsion, there can be no restriction of freedom.” Makes one wonder why they wasted their time and money writing out all that stuff on valuable parchment all those years ago.
What law do you think Congress passed abridging the freedom of speech that is applicable here?
So, I guess whatever standard applies under the First Amendment, the Biden regime can employ any means they like unconstrained by that petty little constitutional amendment? I mean they’re not Congress. Corrupt snakes maybe but still not congressional snakes. Is that your theory David?
No, of course not. My theory is that your “actual text of the First Amendment” argument was dumb, and I was just illustrating why.
It’s dumb to follow the actual text? Another interesting theory. But in answer to your original question, let’s look at that text we should ignore, “no law” So my answer to what law , is no law. There should be no law abridging the freedom of speech that the Biden regime can exploit to its own advantage. Unless of course we selectively ignore text. And as for the scope of the amendment or the constitution in general, the S. Ct. could be more faithful to its the text. Would have avoided a lot of problems from abortion, to the redefinition of marriage to health care.
“If the government persuades, say, Twitter or Facebook, to take them down, that just creates a market incentive for others to publish them.”
Congratulations on penning the single dumbest sentence ever published on this site.