The article is here; the Introduction:
Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.
The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court's precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.
This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion as the archetype or model of constitutionally accountable government conduct. Even in suits against government, the Blum test normally requires plaintiffs to prove that private action has been coercively converted into government action. In such ways, the Blum state action doctrine is not merely erroneous, but has signaled to government that it can get away with censorship as long as it keeps most of it privatized and not overtly coercive.
When it comes to the First Amendment, this Article expresses concern about the doctrinal tendency to confuse "abridging" and "prohibiting." The First Amendment carefully distinguishes the two: It simultaneously bars abridging, or reducing, the freedom of speech, and forbids prohibiting the free exercise of religion. This isn't to say that much coercion is required for a free exercise violation. But the First Amendment at least reveals that it bars whatever merely diminishes the freedom of speech, without any need to show coercion or other prohibiting. Unfortunately, this important distinction between abridging and prohibiting has been lost, with the result that First Amendment doctrine seems to make coercion necessary for a speech violation. Once again, doctrine mistakenly suggests that government can censor Americans—at least if it avoids the most blatant sorts of coercion.
The Supreme Court needs to repudiate the judicial doctrines that invite censorship. When the censorship-justifying doctrines are put aside, and the First Amendment itself is examined, it becomes clear that the Amendment leaves no room for privatized and less-than-coercive evasions of its freedom of speech. This is not, moreover, an unrealistic ideal. The First Amendment itself contains hints as to how censorship can be barred without standing in the way of lawful executive persuasion.
[A.] The Problem
