Supreme Court’s Censorship Views Reviewed
Although the Court punted on Murthy v. Missouri on procedural grounds, justices indicated support for constitutional protections of individual rights. It's cause for guarded optimism.
With the “Twitter Files” Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Justice for collusion in censoring the Hunter Biden laptop story and other Biden embarrassments reaching a hearing last Wednesday, a 2024 article reposted by the Brownstone Institute last week does an excellent job of summarizing the current state of the Supreme Court’s thinking on the federal government’s use of coercion or persuasion to induce companies to violate individuals’ rights. It is a subject well worth revisiting, as Brownstone suggests.
Reporting on the oral arguments before the Supreme Court in the Biden administration social media intimidation case, Murthy v. Missouri, Senior Brownstone Institute Counselor Aaron Kheriaty called attention to a highly important moment in the hearing:
The government’s opening argument attempted to characterize their behavior as friendly persuasion toward the social media companies, not overt coercion. Justice Thomas—famous before Covid for not asking questions but now more vocal on the court—opened by asking whether a distinction between government coercion vs. government persuasion was the only way to think about this case?
Were there any First Amendment cases in which state action was implicated without encouragement or coercion, e.g., simply through deep entanglements that may appear on the service to be cooperative? He also asked what the Constitutional basis was for “government speech” was (hint: there is none). The government’s attorney had to admit that the court has not located government speech in any Constitutional provision. The First Amendment is a restraint on the government, not on citizens.
Along those lines, Justice Samuel Alito pointed out that the Biden administration acted much more aggressively against the social media companies than against the press, suggesting that this was coercion, not a voluntary partnership. “I read the emails between the White House and Facebook [presented in our evidence], which showed constant pestering of Facebook,” Alito said to the attorney for the government.
In addition, browbeating a social media firm into censoring people is much different from talking directly to a reporter or an editor to express displeasure with their reporting, Kheriaty notes. In the social media case, the person who wrote the item the government is telling the company to take down has no choice in the matter and does not even know what is happening to the posts or why. Kheriaty writes,
The analogy to the print media, however, does not hold in the case of the government’s relationship with social media. There are several crucial differences that profoundly change the power dynamic of those interactions in ways directly relevant to our argument. First, in the case of newspapers the government official is talking directly to the journalist or editor—the person(s) whose speech he is trying to alter or curtail.
The journalist has the freedom to say, “Yes, I see your point about national security, I’ll hold my story for one week to allow the CIA time to get their spies out of Afghanistan.” But they also had the freedom to say, “Thanks for trying, but I’m not persuaded I got the facts wrong on this, so I’m going to run it.” The publisher/speaker here has the power, and there is little the government can do to threaten that power.
But of course, with social media censorship the government was never talking with the person who was censored, but with a third-party operating entirely behind the scenes. As my co-plaintiff Dr. Marin Kulldorff told me on Wednesday, “I would have been happy to get a call from a government official and hear about why I should take down a post or change my scientific views.”
In addition, the arguments brought out the fact that government has an implicit, deadly threat toward social media companies in any conversations they may have with them, Kheriaty notes:
The second key difference is that there is little the government can do to destroy the business model or otherwise cripple the New York Times or other print publications, and the journalists and editors there know this. If the government pushes too hard it will also be front page news the next day: “Government trying to bully us to censor disfavored information” with the lede, “Of course, we told them to take a hike.” But the government does have a sword to hang over the head of noncompliant social media companies if they refuse to censor, including the threat to remove Section 230 liability protections, which Mark Zuckerberg has accurately called an “existential threat” to their business, or threats to break up their monopolies.
When the FBI calls Facebook or Twitter with censorship demands the executives there know that this weaponized agency has the power to launch frivolous but nonetheless onerous investigations at any time. It thus becomes impossible for social media companies to tell the government to take a hike—indeed, they may have a duty to their shareholders not to put the company at such serious risks by resisting government pressure. Again, if the FBI pulled such a stunt with the Washington Post it would be front page news until the government desisted.
Justice Clarence Thomas brought up another crucial point: whether government collusion with seemingly cooperative companies is acceptable under the Constitution. Kheriaty writes,
Returning to a theme he had introduced earlier, Thomas asked whether you can censor by agreeing with the platforms: “Let’s work together, we’re on the same team,” and so forth. The government’s counsel responded, “When the government persuades private partners that is not censorship.” But Thomas continued to press the point. What he was hinting at here, I believe, is the legal doctrine of joint participation, which prior cases have established. Even if, on the surface, there appears to be no coercion or pressure, cozy entanglements and enmeshments between public and private actors—even if cooperative—could implicate the private actors as state actors, thereby subject to the Constitution and the First Amendment.
Joint participation is the principle that a “private party’s joint participation with state officials” in a government action such as seizure of a third party’s property “is sufficient to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment” (Lugar v. Edmondson Oil Co., 1982). The analogy to the present case is clear.
It was evident that Thomas was thus closing all the doors to government manipulation of these organizations: coercion is obviously government censorship, and persuasion makes the scheme joint participation. Neither is acceptable, and anything in between those extremes is likewise doing one or both of those things and hence unconstitutional interference with First Amendment freedoms.
The oral arguments brought up important constitutional protections of individual rights that make it unacceptable for the government to use coercion, persuasion, or any other type of communication to induce businesses to do its bidding toward third parties. The Court ultimately decided to drop the case on the issue of the plaintiffs’ standing to sue, so the justices have yet to rule on these issues. It will be interesting to see where they ultimately land.
On something of a side note but a matter of great importance, Justice Neil Gorsuch noted that the national government can benefit from concentration of economic power in a small number of firms, a point not widely understood:
Gorsuch asked another insightful question: is coordination of censorship easier with only a few concentrated social media companies? “We need to account for the possibility that this may make censorship easier.” In other words, the government establishes “relationships” and request portals—as they have done—with the big ones: Meta (Facebook and Instagram), X (formerly Twitter), Google (YouTube), Microsoft (LinkedIn), and one or two others and they have 99.9% of the social media space covered. This could also, by the way, incentivize the government to avoid antitrust efforts even when the companies engage in monopolistic practices against their competition (as when Amazon, Google, and Apple destroyed Parler).
I have long observed that the federal government seems not merely to be unafraid of concentration of power within industries but in fact to welcome it—because it is easier to coerce or “persuade” three or four big companies than to wangle several hundred firms toward some desired end. That is precisely what happened in the Biden administration’s censorship efforts, and it is why big government and big business seem to have such a cozy relationship in the twenty-first century.