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Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship case

Philip Hamburger
Chief Executive Officer

March 27, 2024

The justices of the Supreme Court never focused on the First Amendment’s words when hearing arguments in Murthy v. Missouri last week.

The case challenges the federal government’s orchestration of social media censorship, so one might have expected the justices to pay some attention to the First Amendment itself. Instead, the court relied on its own weak doctrines that invited the censorship in the first place.

The First Amendment makes a crucial distinction between abridging and prohibiting. But there’s a danger the court, in this case, will ignore this and instead reinforce its erroneous coercion standard. If that’s what the court does, it will give the executive branch the green light to persist in the most far-reaching censorship in the nation’s history.

The coercion doctrine, established in Blum v. Yaretksy, suggests that when the government uses private entities to censor Americans, a complaining party must show that the government coercively converted the private censorship into government censorship. This doctrine has invited the government to think it may use social media platforms to suppress the public, as long as it isn’t too obviously coercive against the platforms. Government coercion thus gets elevated as the archetypical measure of censorship (it’s not), and less than coercive privatized censorship gets legitimized (it shouldn’t).

Nonetheless, the court seemed to take the Blum framework for granted. The justices spent much time asking when the government could persuade newspapers to drop their news stories, even though this case had nothing to do with that. The government never asked the suppressed scientists and doctors whether they would be willing to forbear from publishing. Instead, the government used the social media platforms to shut down the speech of the individuals, who were never consulted. Still, most of the justices seemed to assume, in line with Blum, that as long as the government didn’t coerce the platforms, no censorship occurred.

The First Amendment, however, rejects the coercion test. It bars the government from “abridging,” or reducing, the freedom of speech. That standard stands in sharp contrast to the amendment’s bar against “prohibiting” the free exercise of religion. The amendment thus clearly rejects a coercing or prohibiting measure of government censorship in favor of a more sensitive inquiry as to whether the government abridged — that is, diminished — the freedom of speech.

This point about abridging was part of the plaintiff’s argument. The brief of MissouriLouisiana, and the individual plaintiffs urged the court to “revisit” Blum and other such cases, on the ground that their “artificially narrow conception of state action …. weakens the freedom of speech.” In contrast, the First Amendment “capaciously protects the freedom of speech from any ‘abridging’ (i.e., diminishing) of that freedom.”

This, the Constitution’s measure of freedom of speech, clearly bars the government from working with social media to set parameters on public debate. Yet under the Blum coercion standard, that’s exactly what the government has been doing — orchestrating social media to bar evidence and opinion that dissents from the official narrative and questions official policy.

Even cursory attention to the First Amendment would have offered a profound corrective to this coercion doctrine — the doctrine that invites the censorship. The justices, however, appeared to leave the First Amendment aside.

This failure even to quote the First Amendment is especially troublesome because of the judicial barriers that tend to leave the public without an effective remedy for censorship. The court’s qualified immunity doctrine leaves people with little chance of getting damages for past censorship, and its standards for obtaining an injunction leave them with difficulty securing a remedy against future censorship, as the government can simply declare that there’s little reason to think the censorship against the plaintiffs will recur.

So, the government can censor one American after another, seriatim, without consequence.

Originally Published in Washington Examiner