The Government, Big Tech and Free Speech, Round Two

The Supreme Court considers if government can coerce social-media platforms to censor content it doesn’t like.

WSJ editorial. 

"The Supreme Court is back on the First Amendment beat Monday when it hears cases asking whether government officials can jawbone businesses to restrict speech. It seems government needs remedial constitutional training.

In Murthy v. Missouri, states and individuals whose posts on Covid were censored sued federal officials for violating the First Amendment. Lower courts ruled for the plaintiffs based on copious evidence that government officials pressured social-media platforms to suppress their posts.

Former White House director of digital strategy Rob Flaherty and Covid adviser Andy Slavitt flagged posts for removal to social-media employees and berated them if they didn’t follow orders.

Facebook

is “hiding the ball” on its efforts to combat vaccine “borderline content,” Mr. Flaherty wrote in one email.

Mr. Flaherty also blamed Facebook for the Jan. 6, 2021, riot and said it would be blamed for Covid deaths if it didn’t increase censorship. “I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse,” Mr. Flaherty wrote.

Officials reinforced these private lashings with public threats. Former White House press secretary Jen Psaki said platforms could face “legal consequences” if they didn’t censor vaccine “misinformation.” White House officials floated antitrust action and eliminating Section 230 liability protections.

The Justice Department claims this bullying is merely government speech protected by the First Amendment. “So long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views in strong terms,” the Solicitor General writes.

But Biden officials weren’t merely out to persuade. The Fifth Circuit Court of Appeals concluded that Biden officials crossed the line by using threats of legal action. The appellate judges cited the Supreme Court’s Blum (1982) precedent, which held that government is responsible for actions of private parties when it provides “significant encouragement,” meaning “‘[s]omething more’ than uninvolved oversight from the government.”

The Fifth Circuit also cited Bantam Books (1963), in which a Rhode Island state-created commission asked book distributors and retailers for their “cooperation” in removing books it deemed objectionable. Police followed up with retailers to ensure they complied. The commission said it was merely exhorting booksellers.

But the Justices held that the government had violated the publishers’ speech rights. They analyzed the tone and phrasing of the commission’s exhortations as well as government’s legal authority and threat to punish distributors. Much as the Rhode Island commission’s notices were “phrased virtually as orders,” so were the Biden team’s communications with platforms.

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The second case the Court hears Monday (NRA v. Vullo) concerns whether the First Amendment allows government officials to threaten sanctions against regulated entities that do business with a political advocacy group they don’t like. The obvious answer is no, but New York says jawboning is protected government speech.

In 2018 New York state’s then Superintendent of the Department of Financial Services, Maria Vullo, directed financial institutions she regulated to stop doing business with gun-rights groups. Her letters “encourage[d]” financial institutions to evaluate and manage the “reputational risks” of doing business with the groups.

She also threatened financial institutions with penalties for unrelated regulatory infractions, which she said they could escape if they severed ties with the National Rifle Association. Nice business you have there. Terrible if something happens to it.

Drawing on Bantam Books, a federal judge said Ms. Vullo’s threats plausibly violated the First Amendment by punishing the NRA’s advocacy. But the Second Circuit Court of Appeals held that Ms. Vullo acted properly within her remit as a regulator. That ruling is a license for partisans to abuse their regulatory power to silence opponents. Texas’s medical licensing board could, say, threaten to yank licenses of doctors who donate to pro-abortion groups.

A bedrock constitutional principle holds that government can’t coerce private parties to do what government cannot do on its own. The High Court on Monday can reaffirm this emphatically."