The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

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.

So holds the Ohio Court of Appeals in S.E. v. Edelstein, in an opinion by Judge Stephen Powell, joined by Judges Michael Powell and Matthew Byrne. An excerpt from the factual allegations, in the lawsuit brought by ex-wife Kimberly (also representing her and ex-husband Elliott's daughter) against ex-father-in-law Max:

In the complaint, it was alleged that Max had intentionally interfered with the ketubah, the supposed [Jewish marriage] "contract" at issue in this case, by engaging in a continuous "campaign to undermine" Kimberly and Eliott's contractual relationship (i.e., their marriage) for nearly 20 years. The complaint alleged that this included Max being "emotionally abusive" towards Kimberly, as well as Max making "negative and derogatory statements" about Kimberly. This, according to the complaint, included Max criticizing Kimberly's "status as a convert to Judaism" and by frequently stating that Kimberly's and Eliott's children "were not Jewish." The complaint also alleged that Max, "with the intent to destroy the contractual relationship between" Kimberly and Eliott, routinely disparaged Kimberly to "persuade" Eliott to "terminate his contractual relationship with [her]."

The court concluded that, given the Ohio Legislature's abolition of the alienation of affections tort, "neither Max, nor any other person, could be held liable in civil damages to either Kimberly or S.E. for any breach of a promise to marry or alienation of affection," which is what the allegations amounted to.

The ex-wife is apparently a former magistrate and judicial staff attorney; as one might gather, this seems to be a high-conflict divorce that has led to a good deal of litigation (see, e.g., this federal court case).

Note that the high-profile alienation of affections cases have generally involved a lawsuit by an ex-spouse against the other ex-spouse's lover, and alleged adulterous sex—which could also be the basis for the misleadingly named "criminal conversation" tort—or at least romantic seduction. Indeed, such cases are still fairly common in North Carolina, and occasionally litigated in a few other states, such as Utah and Mississippi.

But the gist of the tort was improper interference with a marriage, and it wasn't limited to interference by other sexual or romantic partners. Interference by in-laws could indeed lead to liability in jurisdictions where the alienation tort was recognized, though courts then of course had to decide what was improper and what wasn't. Here's the most recent case I could find along those lines, Poulos v. Poulos (Mass. 1967) (Massachusetts didn't abolish the alienation of affections tort until 1985):

Free Speech Torts

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What follows is some live commentary on the Supreme Court's oral argument today in FDA v. AHM, the mifepristone case.

Solicitor General Elizabeth Prelogar began today's oral argument in FDA v. AHM with standing, emphasizing the plaintiffs' argument for Article III standing is based upon an attenuated chain of causation that fails to satisfy the requirements of Article III standing. This was a good start. In turning to the consequences of allowing this suit to go forward, I think it was an error to focus exclusively on the consequences for reproductive choice and women seeking to terminate pregnancies. Allowing standing in this case poses the risk of opening the door to suits against all manner of FDA decisions, such as decisions to approve vaccines (among other things). Courts have generally rejected standing in such suits. Is that really something the Court wants to change?

Asking the first question (as has become traditional), Justice Thomas wants to know, if not these plaintiffs, who could sue to challenge the FDA's approval (a question that Justice Alito picks up later). This is a good question, but there is no constitutional requirement that Article III standing must exist for someone. Put another way, there can be cases in which no one has Article III standing to challenge the federal government's failure to regulate someone else, particularly where (as here) Congress has not created a cause of action or purported to authorize such suits. Under Lujan, the standing inquiry can be eased when Congress has created a procedural right or authorized suit, but it has never done so here. As Justice Thomas notes in response, the plaintiffs may have a stronger argument relying upon some of the Court's associational standing cases (such as Havens Realty, for instance), but I doubt the Court really wants to rely upon that outlier decision. (Indeed, some of us thought the Court was poised to cut back on Havens Realty in Acheson Hotel.)

Pressed on this point by Justice Alito, SG Prelogar effectively acknowledges that there may not be any specific individual who can sue the FDA for revising ts regulation of mifepristone. The theory the plaintiffs have pressed, she notes, does not come within miles of the requirements of Article III standing as the Court has articulated them in prior cases. Whether there is some other theory out there that might work is not a question the government has to answer.

This morning the Supreme Court will hear oral argument in FDA v. Alliance for Hippocratic Medicine, a challenge to the manner in which the Food and Drug Administration regulates mifepristone, a medication that is used to terminate pregnancies.

The biggest challenge for AHM, the group challenging the FDA, is demonstrating that federal courts have jurisdiction to hear its claims. AHM would like the FDA to regulate mifepristone more stringently, or prohibit its use altogether. In effect, AHM is arguing that the FDA needs to regulate someone else (in this case, mifepristone manufacturers and prescribers) more stringently than it has done. As always in standing cases, asking the courts to force the government to treat a third party differently can be a heavy lift.

AHM's standing claim is based on the argument that AHM's members are injured when women who take mifepristone face complications and seek assistance in emergency rooms. Having to observe and treat such complications causes a cognizable injury, AHM argues, because providing treatment in such cases makes doctors feel complicit in abortion, violates their conscience, and may even expose them to liability.

Assuming that actions by third parties (in this case, the FDA) that force individuals to do their jobs (in this case, anti-abortion ER doctors treating patients) constitutes a cognizable injury for Article III purposes, AHM faces the larger problem of being unable to identify specific doctors who will face specific instances. Rather, they are claiming that the risk of these things has increased because mifepristone is available. The problem here is that AHM is alleging precisely the sort of speculative injuries the Court held were insufficient in Clapper v. Amnesty International. Thus allowing this case to go forward would, in effect, allow groups of doctors to challenge any agency decision that could conceivably result in an increase in injuries among an identifiable group of people. AHM tries to address this problem by citing the comment in Clapper footnote 5 that standing can sometimes be shown "based on a 'substantial risk' that the harm will occur," yet manages to conveniently truncate the quote every time it this argument is made. What footnote 5 actually says is that: "In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm." That latter requirement -- costly anticipatory actions to prevent harm -- is not met here.

In effect, AHM is making the sort of probabilistic injury claim that the Supreme Court routinely rejects (as in Clapper and Summers). As I explained in this post critiquing the Fifth Circuit's acceptance of this argument:

[The court] tries to argue that an injury to one of the plaintiffs is certain because there are so many women that have taken mifepristone, and complications are so common, that it is inconceivable that some of AHM's members will not be called upon to provide emergency room care. This stacks the deck though in the way it presents the numbers, however. For instance, it notes that five million women have taken the drug since 2000. Based on the FDA's acknowledgement that in two-to-seven percent of cases will involve potential complications from the drug not fully working, this means there have been between 100,000 to 350,000 cases in which women have needed additional treatment. But note that these numbers are for a twenty-plus-year period. On an annual basis, this represents 5,000 to 17,000 cases. Even making the demonstrably false assumption that all of these cases require a visit to one of the thousands of emergency rooms in the United States, it is far from a "statistical certainty" that one of the plaintiff doctors will handle one of these cases, as these cases represent a tiny fraction of the over 130 million emergency department visits each year.

Were that not enough, AHM's standing hurdle is even greater because, as the case reaches the Supreme Court, AHM's claims have been narrowed. As initially filed, AHM sought to argue that the FDA wrongly approved mifepristone in the first place. Accordingly, AHM argued that it faced a reasonable likelihood of harm from the availability of mifepristone on the market. In making this argument, it could use all instances of mifepristone complications nationwide to help make its case. Yet AHM cannot make such arguments any more.

In the proceedings below, the U.S. Court of Appeals for the Fifth Circuit (correctly) held that AHM's challenges to the the FDA's initial approval of mifepristone were made too late, so all that is at issue is the FDA's slight loosening of the rules governing mifepristone's administration in 2016 and 2021. This means in order to demonstrate standing AHM needs to demonstrate injury to one of its members based upon the additional complications caused by these regulatory changes. Complications that would or could have happened prior to the 2016 and 2021 revisions are not enough. From my prior post:

It is well established that standing is not dispensed in gross. As the Supreme Court has repeatedly reaffirmed, a plaintiff "must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Standing to challenge one agency action does not necessarily establish standing to challenge another. More specifically, even if the plaintiffs can establish that they will suffer an actual or imminent injury from one FDA action (such as the 2000 approval of mifepristone) that does not mean that they will suffer an actual or imminent injury from another FDA action (such as the 2016 or later revisions to the rules governing mifepristone).

All of this should be fatal to AHM's claims for Article III standing. Whatever one thinks of mifepristone or the FDA's conduct regulating this product over the past 25 years, AHM has not demonstrated that it gets to invoke the jurisdiction of Article III courts to challenge the FDA's decision.

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I will have more to say after the oral argument. In the meantime, here are my prior blog posts about this case and the issues it raises:

"The Next Abortion Battlegrounds," June 22, 2022;
"Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
"AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
"Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
"Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
"The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
"BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.
Supreme Court Denies Red State Effort to Intervene in Mifepristone Case, Feb. 20, 2024.

The Biden administration has been aggressively pursuing antitrust cases against Silicon Valley giants like Amazon, Google, and Facebook. This week it was Apple's turn. The Justice Department (joined by several state AGs) filed a gracefully written complaint accusing Apple of improperly monopolizing the market for "performance smartphones." This questionable market definition will be a weakness for the government throughout the case, but the complaint does a good job of identifying ways in which Apple has built a moat around its business without an obvious benefit for its customers. The complaint focuses on Apple's discouraging of multipurpose apps and cloud streaming games, its lack of message interoperability, the tying of Apple watches to the iPhone to make switching to Android expensive, and its insistence on restricting digital wallets on its platform. This lawsuit will continue well into the next presidential administration, so much depends on the outcome of the election this fall.

Volt Typhoon is still in the news, Andrew Adams tells us, as the government continues to sound the alarm about Chinese intent to ravage American critical infrastructure in the event of a conflict. Water systems are getting most of the attention this week. I can't help wondering how we expect the understaffed and under-resourced water and sewage companies in this country to defeat sophisticated state-sponsored attackers. This leads Cristin and me to a discussion of how the SEC's pursuit of CISO Tim Brown and its demands for more security disclosures will improve the country's cybersecurity. Short answer: It won't.

Cristin covers the legislative effort to force a divestiture of Tiktok. The bill has gone to the Senate, where it is moving slowly, if at all. Speaking as a parent of teenagers and voters, Cristin is not surprised. Meanwhile, the House has sent a second bill to the Senate by a unanimous vote. This one would block data brokers from selling American's data to foreign adversaries. Andrew notes that the House bill covers data brokers. Other data moguls, like Google and Apple, would face a similar restriction under a new executive order, so the government will have multiple opportunities over the next few months to deal with Chinese access to American personal data.

In the wake of the Murthy argument looking at the first amendment and administration efforts to increase social media censorship of mostly right-wing posts, Andrew reports that the FBI has resumed its outreach to social media companies, at least where it identifies foreign influence campaigns. Meanwhile, the FDA, which piled on to criticize ivermectin advocates, has withdrawn its dubious and condescending tweets.

Finally, Cristin reports on the spyware agreement sponsored by the United States. It has collected several new supporters. Whether this will reduce spyware installations or simply change the countries that supply the spyware remains to be seen.

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets

The Supreme Court is getting a heavy serving of first amendment social media cases. Gus Hurwitz covers two that made the news last week. In the first, Justice Barrett spoke for a unanimous court in spelling out the very factbound rules that determine when a public official may use a platform's tools to suppress critics posting on his or her social media page. Gus and I agree that this might mean a lot of litigation, unless public officials wise up and simply follow the Court's broad hint: If you don't want your page to be treated as official, simply say up top that it isn't official.

The second social media case making news was being argued as we recorded. Murthy v. Missouri appealed a broad injunction against the US government pressuring social media companies to take down posts the government disagrees with. The Court was plainly struggling with a host of justiciability issues and a factual record that the government challenged vigorously. If the Court reaches the merits, it will likely address the question of when encouraging the suppression of particular speech slides into coerced censorship.

Gus and Jeffrey Atik review the week's biggest news – the House has passed a bill to force the divestment of TikTok, despite the outcry of millions of influencers. Whether the Senate will be quick to follow suit is deeply uncertain.

Melanie Teplinsky covers the news that data about Americans' driving habits is increasingly being sent to insurance companies to help them adjust their rates.

Melanie also describes the FCC's new Cyber Trust Mark for IOT devices. Like the Commission, our commentators think this is a good idea.

Gus takes us back to more contest territory: What should be done about the use of technology to generate fake pictures, especially nude fake pictures. We also touch on a UK debate about a snippet of audio that many believe is a fake meant to embarrass a British Labour politician.

Gus tells us the latest news from the SVR's compromise of a Microsoft network. This leads us to a meditation on the unintended consequences of the SEC's new cyber incident reporting requirements.

Jeffrey explains the bitter conflict over app store sales between Apple and Epic games.

Melanie outlines a possible solution to the lack of cybersecurity standards (not to mention a lack of cybersecurity) in water systems. It's interesting but it's too early to judge its chances of being adopted.

Melanie also tells us why JetBrains and Rapid7 have been fighting over "silent patching."

Finally, Gus and I dig into Meta's high-stakes fight with the FTC, and the rough reception it got from a DC district court.

3/26/2012: NFIB v. Sebelius is argued.

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Blocked Facebook page — Rafael Henrique | Dreamstime.com

Columbia law Prof. Philip Hamburger has put up a detailed post responding to my earlier argument that courts should focus on coercion in Murthy v. Missouri, the case where two state governments and other plaintiffs argue that various federal agencies violated the First Amendment by pressuring social media platforms into barring various posts from their sites. I appreciate Prof. Hamburger's thoughtful post. But I remain unpersuaded.

Prof. Hamburger relies heavily on the use of "abridging" in the Free Speech Clause, in contrast to the use of "prohibiting" in the Free Exercise Clause:

The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.

The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.

Thus, Prof. Hamburger concludes that "even when the government acts through entirely voluntary cooperation, without even a hint of coercion, it can still be abridging the freedom of speech."

There may indeed be a meaningful distinction between "abridging" and "prohibiting." The former is a lower standard than the latter, suggesting that even relatively minor restrictions are unconstitutional. But it is nonetheless the case that, for there to be a violation of the Constitution, the thing the government must restrict (or "abridge") is "freedom of speech" (emphasis added). Absent some kind of compulsion, there is no loss of freedom.

Indeed, voluntarily choosing not to engage in some type of speech is itself an exercise of that freedom. Both common sense and longstanding Supreme Court precedent indicate that the right to refrain from speaking is itself a free speech right. If a private firm voluntarily chooses not to engage in speech, there is no violation of the freedom of speech, just the exercise of it. And that's true even if the decision was taken in response to non-coercive persuasion by the government.

If a government official persuades Reason to bar me from posting on their website because, he argues, my posts are unfair to the president and misrepresent the effects of his wonderful policies, there is no violation of freedom of speech. To the contrary, Reason's decision would be an exercise of that freedom.

Prof. Hamburger tries to distinguish this sort of situation from the social media case because, in the latter, the speakers' consent has not been obtained:

You might protest, as does Prof. Somin, that when the government persuades Reason not to let him post on this website, the government does not thereby violate his First Amendment rights. In his view, "that's no different" from when the government persuades the platforms to suppress Dr. Jayanta Bhattacharya's posts. Really, no different? Prof. Somin publishes here as a member of the blog, who has been personally invited to publish under its masthead. Whereas newspapers publish their choice of submitted editorials, blogs publish anything a member of the blog posts, but either way, nothing gets published or posted except what has been chosen by the newspaper or blog through its selection of an editorial or blogger….

In contrast, any individual can post on the platforms, at least until his posts are removed, and that is the individuals' speech, not the platforms' speech. Not even the platforms claim otherwise…. So when the government consensually gets a platform to remove posts, it is suppressing the speech of third parties without their consent.

Actually, it is not true that "any individual can post on the platforms, at least until his posts are removed." They can only do so if they first agree to the platforms' "terms of service," which include restrictions on the types of speech that are allowed, and also generally reserve the right to change the terms of service unilaterally. The latter point defeats Prof. Hamburger's argument that users did not consent to removal of speech that doesn't violate the terms of service. If platforms impose restrictions that somehow go beyond their terms of service, the users might have a right to sue for breach of contract. But it would still not be a violation of the First Amendment. In sum, while Facebook or Twitter/X impose fewer editorial constraints on content than the New York Times or Reason, they do still have them.

Prof. Hamburger also relies on contract law's recognition of various forms of information asymmetry and "pressure" that do not involve coercion, but might still vitiate a contract. Libertarian that I am, I decry many of these shifts in contract law. But whether defensible or not, they still don't prove there can be a violation of "freedom of speech" without coercion. Indeed, these restrictions on contract rights tend to be paternalistic in nature. They don't promote freedom, but rather restrict it in the name of promoting welfare, for fear that people might make bad choices in response to information asymmetries or social pressure.

Finally, it is ironic and internally contradictory that Prof. Hamburger has 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.

My own position, by contrast, is completely consistent: government can use persuasion, but not coercion, in both situations. It cannot force social media platforms to either post material they disapprove of or to bar that which the private firms would prefer to allow. But, in both situations, it can use noncoercive persuasion. As noted in my previous post, various veiled threats can also be coercive. Identifying them may, in some cases, create evidentiary issues.

There is, perhaps, a disagreement here that goes beyond legal considerations. Prof. Hamburger is, I think, deeply worried that social media firms taking down posts will severely constrain the marketplace of ideas. I am not. The types of speech federal agencies tried to get social media firms to remove (e.g- anti-vaxxer speech, claims that the 2020 election was stolen from Trump, etc.) nonetheless remain widely available online and elsewhere. You can even find plenty of it on social media platforms! If there is a market demand for this kind of speech, media firms will have strong incentives to provide it - so long as government doesn't suppress them.

Prof. Hamburger is right that speech can be a "public good" (though it can also often be a public bad, as when misinformation leads to the adoption of harmful government policies). But voluntary decisions by social media firms are not a significant threat to that public good. Only systematic government coercion is likely to truly endanger it.

In Trump v. United States (the immunity case), the Supreme Court ordered the D.C. Circuit to "continue withholding issuance of [its] mandate" until the Supreme Court issues a judgement. At Lawfare, Jack Goldsmith (no relation to Jack Smith) and
Tom Koenig offer a wonky breakdown of the Court's order. Here, I'd like to flag one aspect of the per curiam order that bears on a topic of recent interest: unexplained stays that avoid the four-factor test from Nken v. Holder. Goldsmith and Koenig write:

We cannot find any square precedent for the Supreme Court's order to a lower court to withhold the issuance of that court's mandate. (Given the difficulty of researching obscure emergency orders, we very well may have missed a precedent.) The Court has withheld issuance of its own mandates. It has "stayed" the issuance of lower federal courts' and state courts' mandates. And it has denied requests to "stay" the issuance of a lower court's mandate. But our research has not turned up a past instance of the Supreme Court directing a lower court to "withhold issuance" of its own mandate.

The first puzzle here is whether this order differs from a stay. The Supreme Court seemed to go out of its way to indicate that it was not issuing a stay when it used the language of "withholding the mandate"; when it ruled that Trump's stay request was moot; and, perhaps, when it stated that it was not implying anything about the merits, which a stay order typically does, since at least a "fair prospect" that the Court will reverse the judgment below, and perhaps even a "likelihood of success on the merits," is needed for a stay. (Both the precise standard for a stay in the Court and whether there is a meaningful difference among the potential standards are unclear; but some merits consideration is typically involved under all the relevant standards.)

Yet the Court's order appears to have the same practical effect as a stay of the mandate: The D.C. Circuit's order cannot go into effect, pending the Supreme Court's review. As the Court explained in Nken v. Holder, an appellate court's stay of a lower court's order temporarily "hold[s]" that order "in abeyance pending review." Here the order the Supreme Court held in abeyance is the D.C. Circuit's order affirming the district court. The D.C. Circuit had already stayed that order by directing the clerk of the court to withhold its issuance temporarily. (As noted above, the D.C. Circuit treats "withhold orders" as stays.) By directing the D.C. Circuit to continue withholding its order affirming the district court, the Supreme Court achieved the same result as a stay.

The Supreme Court did not grant a stay of the D.C. Circuit's judgment. The Supreme Court did not consider the four-factor test from Nken v. Holder. The Supreme Court expressly did not opine on the merits.

It is possible that the Court in its Trump v. United States "continue withholding" directive relied—in part or in whole—on its inherent power to "hold an order in abeyance," in the words of Nken. This might explain why it did not use the language of "stay" and why it could nonetheless dismiss the request for a stay as moot. And it might also explain why the Court could indicate that it had not taken any view of the merits in issuing its order. For the Court's inherent power to hold a lower court order in abeyance in this context might not turn on the traditional stay factors, including a preliminary merits assessment (whether filtered through the "fair prospect" of reversal standard or the "likelihood of success on the merits" standard). Indeed, since the Court granted certiorari on a potentially dispositive interlocutory issue in the same order, it is natural to see its directive to the D.C. Circuit as, in the words of McKenzie, part of an inherent power needed to "render [the Court's] jurisdiction efficacious" without any need to take a view on the merits.

The Supreme Court did exactly what Justices Barrett and Kavanaugh told the Fifth Circuit not to do: issue a temporary shadow docket remedy that puts a lower court ruling on hold without considering whether the suit is likely to succeed on the merits.

The message is loud and clear: unexplained stays for me, but not for thee.

If you read through the rest of Goldsmith and Koenig's post, I think you'll come to the conclusion that--at best--the Court was relying on some sort of "inherent" authority to order the withholding of the mandate without actually issuing a stay. The authors write that such an argument "appears to be a novel basis for a directive of this sort and might imply a much broader power to stop lower court proceedings than the Court has until now recognized." We are in very nebulous grounds here--perhaps yet another facet of the shadow docket that warrants a New York Times best-selling book.

The Supreme Court should get its own emergency docket in order before lecturing the lower courts how to deal with theirs.

This morning the Supreme Court denied certiorari in Murphy Co. v. Biden, a challenge to President Obama's invocation of the Antiquities Act to expand a national monument designation so as to place additional federal timber lands in Oregon off limits to timber development.

Here was the question presented portion of the petition filed on behalf of the Murphy Company:

The Antiquities Act of 1906 authorizes the President, "in [his] discretion," to declare that "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" found on federal land are "national monuments" and to "reserve parcels of land as a part of the national monuments" so long as those parcels are "confined to the smallest area compatible with the proper care and management of the objects to be protected." 54 U.S.C. 320301. Three decades after that Act's passage, in the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act), Congress reserved certain federal lands in Oregon for "permanent forest production," mandating that "the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield" timber production. 43 U.S.C. 2601. In 2017, President Obama invoked the Antiquities Act to add O&C Act timberlands to an existing Oregon national monument established to protect biological diversity, see Proclamation 9564, 82 Fed. Reg. 6,145 (Jan. 12, 2017)—despite the fact that lands that are part of that monument may not be used in "provision of a sustained yield of timber," Proclamation 7318, 65 Fed. Reg. 37,249, 37,250 (June 9, 2000).

The question presented is whether the Antiquities Act authorizes the President to declare federal lands part of a national monument where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with national-monument status.

Although the case received a decent amount of interest from amici (five in support of certiorari, and one joining the federal government in opposition), it appears that four justices were not interested in hearing the case.

Justice Kavanaugh expressed an interest in the case, however. Today's orders list noted that both Justice Kavanaugh and Justice Gorsuch (the one justice to have served in a western state) would have voted to grant certiorari. As I have noted several times before, Justice Kavanaugh quite regularly notes his willingness to grant certiorari when his colleagues are not so convinced.

While the Court showed no interest in examining the Antiquities Act today, I suspect they may wish to consider the scope of executive branch authority under this statute eventually, particularly since recent administrations have been reasonably aggressive invoking it.

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

Hamburger wrote the following post in response to a post at Volokh by Ilya Somin:

Is coercion the First Amendment's measure of the freedom of speech? In commenting on Murthy v. Missouri, Prof. Ilya Somin takes the view that "coercion is the appropriate standard." To this he merely adds that "veiled, but credible threats of retaliation by government officials qualify as such coercion."

So far does he take this emphasis on coercion that, from his perspective, there is no First Amendment violation even when the government uses "significant encouragement" to get the private party to concede "active control" over its speech decisions. In the absence of coercion (including credible threats of retaliation) he apparently sees no limit on the power government can exercise over speech if it gets consent.

Abridging vs. Prohibiting

The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.

The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.

It is therefore unconvincing to suggest that coercion is the measure of freedom of speech. That contradicts the plain meaning of the First Amendment when it contrasts abridging and prohibiting.

Where did Prof. Somin go wrong? He gets to his coercion standard from the word "freedom," arguing that if a private party "cut[s] back on speech voluntarily, the freedom of speech has not been abridged." His theory seems to be that you have not had your freedom abridged if you give consent, and you are acting consensually unless you are coerced. Thus, although the First Amendment's very words make clear that coercion is not the standard for freedom of speech, he reintroduces a coercion standard on the theory that it is the opposite of freedom and consent.

But does it make sense to introduce a coercion standard into a right when the Constitution carefully speaks of it in terms of abridging and contrasts that to prohibiting? Such reasoning defeats the Constitution's words and meaning.

Abridging Was Part of the Traditional Understanding of the Freedom of Speech and Was a Deliberate Choice

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

Today, Lawfare published my article on why Texas is wrong to equate illegal migration and cross-border drug smuggling with "invasion" in two important cases currently being litigated before the federal courts. Some of the points made in the article are developed in greater detail in an amicus brief I recently filed in United States v. Abbott, on behalf of the Cato Institute and myself.

Here's an excerpt from the article:

In two important cases currently before the U.S. Court of Appeals for the Fifth Circuit, the state of Texas has advanced the argument that illegal migration and drug smuggling qualify as an "invasion" authorizing the state to "engage in war" in response, under Article I of the Constitution. So far, federal courts have uniformly rejected such claims. But if they were to accept them, drastic consequences would follow. Border-state governments would be empowered to attack neighboring countries, even without congressional authorization. And the federal government would have the power to suspend the writ of habeas corpus—thereby detaining people without due process—almost anytime it wants. In addition to these practical considerations, Texas's "invasion" argument is at odds with the text and original meaning of the Constitution.

In United States v. Abbott the federal government is suing Texas for installing floating buoy barriers in the Rio Grande to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation…. The Biden administration claims this violates the Rivers and Harbors Act of 1899, which bars "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." In United States v. Texas, the state is defending the legality of S.B. 4, a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas state courts the authority to order removal of migrants convicted under the law. The federal government claims S.B. 4 is preempted by federal law and that it infringes on federal authority over immigration.

In both cases, Texas argues the federal government's interpretation of the relevant statutes is wrong. But, more importantly, the state also contends that the Invasion Clause of Article I of the Constitution gives it the power to install buoys in the river border it shares with Mexico and to enforce S.B. 4 even if federal statutes forbid such actions. Article I, Section 10, Clause 3, of the Constitution states that "[n]o state shall, without the Consent of Congress, … engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion" and that, therefore, the Constitution gives the state the power to take military action in response in defiance of federal statutes, and even in the absence of congressional authorization for war….

The constitutional text undermines the idea that "invasion" includes illegal migration and smuggling. The Invasion Clause relied on by Texas allows states to "engage in war" in response. That suggests an "invasion" must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated….

The Guarantee Clause of Article IV of the Constitution states that the federal government must protect the states "against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." Here, invasion is paired with "domestic Violence"—which in 18th century usage refers to uprisings against the state government, not the modern use of the term to denote violence in family and intimate relationships. Under the long-standing doctrine of noscitur a sociis, "a word may be known by the company it keeps." Here, it makes little sense to assume that "invasion" includes nonviolent actions, when it is coupled with "domestic Violence."

The original meaning reinforces the text….

In his Report of 1800, James Madison,one of the leading framers of the Constitution, responded to claims that the Guarantee Clause authorized the notorious Alien and Sedition Acts of 1798 by emphasizing that "[i]nvasion is an operation of war,"and thus the Clause does not authorize restrictions on immigration. The same logic applies to the use of "invasion" in Article I.

Tablet Magazine's profile of Seth Barrett Tillman provided a peek inside our working relationship. Due to the six-hour time difference between Houston and Dublin, we often have to chat at unusual times. Our sweet spot is around midnight Texas time, before I go to sleep, and early morning Ireland time, when Seth wakes up. During that window, there are few work or personal interruptions, and we can chat--as we often do--for lengthy periods about arcane legal questions that suddenly become timely.

Another timing quirk of our collaboration is the Sabbath. Seth and I are out of contact every week from when Shabbat begins in Dublin (around Sundown on Friday) to when Shabbat ends in Houston (about an hour after sundown on Saturday). During the winter, Shabbat begins as early as 4:00 p.m. in Ireland, so our communications cease on Friday morning around 8:00 a.m. Central Time. And quite often, big things tend to happen in the courts on Friday afternoons. We've had many briefs due on Fridays, so we have to file a day early on Thursday. (Somewhat related, we have had many briefs due on Jewish holidays; we also had to file early). Most recently, the Denver trial court ruled that President Trump was not an "Officer of the United States" on Friday after 5 p.m. local time. Seth remained unaware of that news till Saturday evening his time. Thankfully, I was in California that day, and was able to digest the opinion, and quickly blog about it, before I too had to sign off.

Tablet reported, "Blackman doesn't check or send email on Shabbat, meaning there is a 30-hour period each week when the two cannot be in communication." This is a new practice for me, and I wanted to write about it here.

This past Yom Kippur, in September, I made a promise to myself stop using the Internet on Shabbat. In recent years, I had stopped using my phone on Rosh Hashanah and Yom Kippur, and so decided to expand the practice. In candor, I still do all sorts of otherwise prohibited activity. I'll drive, write, and use my computer without WiFi. I also leave my phone on, but only with voice calls and text messages--no data. Still, this is a massive shift in my approach to the world. For approximately twenty-five hours every week, I am off the grid. I do not check emails. I do not read news. I do not go online. I do not check social media. Nothing.

From a religious perspective, I am trying to become more observant, and am proud that I have stuck with it this long. But from a social perspective, this is one of the best self-improvements I've made in some time. Rabbi Meir Soloveichik analogized Shabbat to unplugging from The Matrix. He wrote, "You can find hints of an unplugged 'Zion' in the Sabbath tables of observant Jews, where electronic devices are forbidden."

For a full day, I can completely disconnect from the world around me. No one can bother me. No one can disturb my peace. No one can impose some new deadline on me. No one can call me an Illuminati Priest. The only people I interact with are those I choose to be with. My phone stays in my pocket for emergencies, and seldom comes out. I will use my computer to read documents I've downloaded in advance, or prepare for class, but I do not acquire any new information from the internet. When Saturday evening arrives, I feel refreshed in ways I did not anticipate. Now, once the sabbath ends, I have to go through my emails and missed stories. That process takes about two hours. But I would much rather have that compressed two-hour window late Saturday night, in order to have the prior 25-hours free.

Last month, I wrote about a Fourth Circuit decision in Doe v. Sidar, which discusses one-sided pseudonymity. Last week, Google received two requests that it remove that post from its indexes—and thus vanish it from search results—on the theory that the post violated the copyright in a Tumblr post, https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual:

Re: Unknown
NOTICE TYPE: DMCA

Copyright claim 1

KIND OF WORK: Unspecified

DESCRIPTION The decision allows such pseudonymity when the defendant has already been found (by default judgment) to have committed the assault, but Judge Wilkinson's concurrence argues that, absent this unusual factor, one-sided pseudonymity should be frowned on.

ORIGINAL URLS: https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual

ALLEGEDLY INFRINGING URLS: https://reason.com/volokh/2024/02/21/fourth-circuit-on-one-sided-pseudonymity-in-sexual-assault-cases/

But it is that tumblr post that copied mine, not vice versa; though the post appears to be backdated to the day before I posted mine, whoever sets up a site is able to do that sort of thing. Indeed, the post is the only one on that particular tumblr blog, which I expect was created precisely to make the deindexing request. And if you want still more evidence, note that the post (on the tumblr blog as well as on my blog) talks about "my amicus brief on my own behalf in this case"; you can check the court records to see that this was my brief, not some anonymous tumblr blogger's brief.

This is a known sort of deindexing scam, which I discussed at pp. 300-01 of my Shenanigans (Internet Takedown Edition) piece, and which has been known as far back as 2016, see this Tim Cushing (TechDirt) piece, and likely even earlier. Fortunately, it appears that Google has not acted on this request, and I expect that it will not.

I unfortunately can't tell who is behind this; the deindexing requests have submitters' names attached, but those could be just as fake as the rest of the request. But in any event, I thought I'd mention that. For those curious what someone wants to hide, I copy my original post below.

Free Speech Right of Access

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