The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump Executive Order on "Ending Federal Censorship": Free Speech, Private Power, and Government Power Following Murthy v. Missouri
Monday, President Trump issued an Executive Order, "Restoring Freedom of Speech and Ending Federal Censorship"; it reads, in relevant part:
Section 1. Purpose. The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference. Over the last 4 years, the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve. Under the guise of combatting "misinformation," "disinformation," and "malinformation," the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government's preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.
Sec. 2. Policy. It is the policy of the United States to: (a) secure the right of the American people to engage in constitutionally protected speech;
(b) ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen;
(c) ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and
(d) identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.
Sec. 3. Ending Censorship of Protected Speech. (a) No Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to section 2 of this order.
(b) The Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy, with recommendations for appropriate remedial actions to be taken based on the findings of the report.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The difficulty, of course, is in figuring out what government action constitutes "unconstitutionally abridg[ing] the free speech of any American citizen." When the government exerts "substantial coercive pressure" on a platform to restrict speech, that would indeed generally be unconstitutional (see NRA v. Vullo). But the order doesn't seem limited to that; recall that it says that
the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve [emphasis added].
That suggests that such censorship might consist of things other than substantial coercive pressure, such as noncoercive requests that platforms censor things. And indeed the noted Murthy v. Missouri litigation (originally Missouri v. Biden) objected not just to coercion but also to attempts to persuade or hector platforms into restricting speech. Presumably the Attorney General's Report mandated by sec. 3(b) will deal with that very question.
As it happens, Part II of my short Harvard Law Review Forum essay titled "Free Speech and Private Power", which I've been serializing over the last week or so, deals with this very question, so I thought I'd pass it along:
[* * *]
The law also sometimes constrains governments' use of private power, especially when such government action is aimed at accomplishing goals that are forbidden to the government itself. Even when there's nothing unconstitutional about a private entity doing something on its own, the government may be constrained in its ability to partner up with the entity to accomplish the government's goals.
Thus, for instance, say that you rent out a house to a tenant. The lease might allow you to access the property, with sufficient notice, and state law may recognize that right. If you observe evidence of a crime when you are lawfully accessing the property—or even when illegally exceeding your rights to access the property—and report it to the police, the police can use that information without violating the Fourth Amendment: The information came from your private search, not a government search.
But say the police call you up and say, "We know you have the right to inspect your tenant's apartment; might you exercise that right, please, and in the process see if you can spot any evidence of crime? No pressure: If you say no, we won't retaliate against you. But we hope you'll be a good citizen and help us out." And say you do inspect the apartment, find evidence of crime, and turn it over to the police. That evidence will be treated as the fruit of a Fourth Amendment violation, because the government prompted the private search (even if it didn't coerce the private search).
The same is likely so if the government urges a private person to interrogate someone, or to discriminate based on race. The government has immense power, but is limited by constitutional constraints. Landlords, roommates, employers, and others also have immense power in the aggregate—in part precisely because they aren't limited by those constitutional constraints—but are limited by the fact that, as private entities, they can't do some of the things the government can do. Courts have resisted allowing the government to combine those two sets of powers.
The question in Murthy was whether this principle also applies to government requests that private entities limit users' speech. The answer, after Murthy, is that we don't know.
Murthy said even less about the First Amendment than Moody did, because the Court decided that the challengers in Murthy lacked standing to bring their claims: They didn't sufficiently show that the government's requests to platforms—whether viewed as coercion or just persuasion—affected how the platforms treated these particular plaintiffs, and (more importantly for injunction purposes) how the platforms would treat them in the future. Former U.S Secretary of Labor Robert Reich wrote that:
[In Murthy], the US supreme court said federal agencies may pressure social media platforms to take down misinformation—a technical win for the public good (technical because the court based its ruling on the plaintiff's lack of standing to sue).
But the Court in Murthy of course did not say that it's permissible for federal agencies to pressure social media platforms this way.
And, returning to standing, presumably someone was likely affected by the government's requests: Presumably government officials put in the time and effort to make the requests in order to have some effect. To be sure, it's theoretically possible that every time the government asked platforms to remove certain material, the platforms would have done so in any event on their own, even without such a request. But it just doesn't seem likely. Mark Zuckerberg's letter to Representative Jim Jordan acknowledging the "pressure[]" from the government accepted that Meta was ultimately responsible for its removal decisions ("Ultimately, it was our decision whether or not to take content down, and we own our decisions"). Yet the letter suggests that the pressure did indeed affect Meta's "choices," including ones that Zuckerberg wishes he hadn't made.
Some people might thus be able to show actual injury from federal pressure on platforms, and perhaps even the likelihood of future injury, especially if the federal government decides to make such pressure part of its normal arsenal. And if state governments do something similar, they could be sued under 42 U.S.C. § 1983 for actual damages, which wouldn't require a showing of likely future injury.
If such action is coercive, then courts could indeed find a First Amendment violation. Indeed, that's what the Court did in this past Term's National Rifle Ass'n of America v. Vullo decision: The state government official defendants there allegedly coerced banks and insurance companies to stop doing business with the NRA, rather than allegedly coercing internet platforms, but the First Amendment coercion analysis should be much the same in either situation.
Yet if the action merely involves persuasion rather than coercion—or perhaps the government systematically working together with social media platforms—then the Court would have to confront the question that it temporarily avoided in Murthy: Is the government free to encourage platforms to restrict user speech, so long as it does so noncoercively? Or, as with the Fourth Amendment, are there limits on the government trying to accomplish, using private power, things that it isn't allowed to accomplish by itself?
Missouri v. Biden, the Fifth Circuit decision reversed on standing grounds in Murthy, concluded that the government indeed went too far in encouraging private entities to restrict speech (even in the absence of coercion). For one thing, the court concluded, the interactions between the government and the platforms were systemic and not just occasional: "consistent and consequential," "repeated[]," "persistent[]," and "relentless." And, likely more importantly, the interactions involved "press[ure] for outright change to the platforms' moderation policies," which caused "a lasting influence on the platforms' moderation decisions without the need for any further input."
The result was that the government "was entangled in the platforms' decision-making processes," with the government "becoming intimately involved in the various platforms' day-to-day moderation decisions" in a way that produced "an extensive relationship with the platforms." Because of this, "the resulting content moderation, 'while not compelled by the state, was so significantly encouraged, both overtly and covertly' by CDC officials that those decisions 'must in law be deemed to be that of the state."'
This may have been the Fifth Circuit's attempt to distinguish the government's actions from the routine individual interactions between government officials and the media that Justices Kagan and Kavanaugh discussed during oral argument, referring to their own experiences in the White House. Perhaps those kinds of interactions wouldn't be as ""consistent," "repeated[]," "persistent[]," and "relentless," at least by the same government office (even if they happen often when one views the government as a whole). And, likely more importantly, such interactions wouldn't involve changes to media policies or government "entangle[ ment]" or "intimate [] involve[ment]" in the media's decisionmaking.
To be sure, this may be an odd line to draw. When it comes to coercion, after all, even one-time coercive demands to intermediaries (for example, "cut off financial services to Backpage.com, or we'll prosecute you") are unconstitutional. Likewise, even a one-time request by the police asking a private property owner to engage in a search would be state action subject to Fourth Amendment constraints. Yet some line might be necessary, to constrain the union of government power with private sector power. The Fifth Circuit's opinion is of course no longer binding precedent, since it was reversed on standing grounds; but it remains to be seen whether its analysis will remain persuasive to future judges.
