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.
The post Abridgement, Coercion, and Freedom of Speech: Reply to Philip Hamburger appeared first on Reason.com.
