In recent decades, the Court has been extremely skeptical when the government, acting as sovereign (as opposed to employer, subsidizer, educator, etc.) tries to suppress speech based on its content. But of course there has also long been a tradition of Justices arguing in favor of allowing restrictions when the government's needs appear especially urgent. Justice Breyer offers a recent example, and of course past Justices had taken similar views. Chief Justice Rehnquist was more embracing of speech restrictions, for instance, especially in his early years. Justice Frankfurter was another example, back in the 1940s and 1950s. (For more on the link between Justice Frankfurter's and Justice Breyer's approaches, see here.)
Yesterday's Murthy v. Missouri argument suggests that Justice Ketanji Brown Jackson may take a similar approach. Recall that the heart of the case is about two related but conceptually separate issues: (1) whether the government coerced platforms into restricting certain user speech; (2) whether, if the government merely substantially encouraged platforms to restrict such speech rather than coercing them, that would itself be subject to First Amendment scrutiny. Most of the Justices asked the lawyers about these two matters, and about related procedural questions.
But several of Justice Jackson's questions raised the possibility that the government may indeed be allowed even to coerce platforms into restricting speech—including speech that doesn't fall within the familiar First Amendment exceptions (such as for true threats or solicitation of crime). Some excerpts (emphases added):
