Law Prof Warns SCOTUS Decision in Key Case Could Be Undoing of Free Speech Online

April 1st, 2024 4:58 PM

One legal expert is telling Americans that abridgment, not coercion, is the standard in a landmark free speech rights case.

Philip Hamburger, a Columbia University legal scholar and CEO of the New Civil Liberties Alliance, took on what he argued is an incorrect standard for a landmark case. As the free speech case, Murthy v. Missouri, is before the U.S. Supreme Court, George Mason University Law Professor Ilya Somin argued for Reason Magazine that government “coercion” is the standard in determining constitutional violations. Hamburger, however, who represents most of the case’s individual plaintiffs, explained in a piece in Reason that the standard is abridgment, and the government does not have the power to violate Americans’ free speech, even if provable coercion is not involved.

The “First Amendment bars government from ‘abridging’ the freedom of speech, and thus bars reducing that freedom,” Hamburger explained. He also noted that the amendment bars the federal government from “prohibiting” the free exercise of religion. Thus, abridgment and prohibition are distinct and separate standards.

Indeed, Hamburger argued, “freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.” Some verbs in the Constitution are “generic,” but the First Amendment language is not, he wrote. Hamburger also cited past scholarship on abridgment language about freedom of speech. The specificity seems deliberate and important. Therefore, if the government and Big Tech did collude to reduce free speech, that is a constitutional violation, even without specific coercion, according to Hamburger.

Hamburger also expressed concern about the apparent lack of understanding of this distinction in the Murthy v. Missouri case. “The Supreme Court's overemphasis on coercion has invited censorship,” he wrote, arguing that this emphasis “leaves government confident that it can suppress speech simply by working not too coercively through private parties.” Yes, much of the online censorship involves “cooperation” between the government and Big Tech companies, and thus the danger of focusing only on coercion.

Even looking at previous Supreme Court cases, Hamburger added, “consensual arrangements can violate the First Amendment.” This is especially significant, the professor noted, because “there's also a longstanding constitutional principle that government cannot use private parties to do its dirty work.”

Hamburger further stated that any government “policy of any sort to suppress lawful speech — whether because it is false or offensive — is forbidden” by the First Amendment. And he concluded, 

“The coercion-consent measure of free speech is utterly mistaken. It is wrong about coercion, it is wrong about consent, and it practically invites government censorship. So, if the Supreme Court takes such an approach in Murthy v. Missouri, the case will stand out as one of the most abysmal First Amendment decisions in the nation's history.”

Somin had argued that the Supreme Court should focus on coercion and that government “persuasion” to censor does not necessarily violate the First Amendment. Murthy v. Missouri oral arguments were heard at the Supreme Court March 18.

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