Free speech on the docket: The future of free speech after Supreme Court decisions
The government is always looking for an excuse to curtail users’ free speech online. Echoing growing concerns about the government’s role in policing social media, the Supreme Court waded into the debate by issuing decisions on seven First Amendment cases during the recently ended term.
The Bully Pulpit
The high-profile cases involved government actors using their official positions to pressure intermediaries to silence their customers.
In NRA v. Vullo, the NRA prevailed over the New York financial regulator’s use of her office to pressure insurance companies to stop doing business with the NRA because she—and the governor—disagreed with the NRA’s advocacy for Second Amendment rights.
The Court held that using her position violated the First Amendment because “a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf.”
The Supreme Court has ruled unanimously in NRA v. Vullo that state officials CAN NOT pressure financial institutions to cut ties with organizations like the NRA – it’s a violation of the First Amendment.https://t.co/2AsNQb7EcC
— Americans for Prosperity (@AFPhq) May 30, 2024
We had hoped and expected the Court to rule similarly in Murthy v. Missouri, but we were wrong.
Murthy was the social media jawboning case in which various bureaucrats from across the executive branch pressured social media companies to silence or suppress speech that challenged the government’s narrative.
Encouragement ranged from nagging (e.g., “I want an answer on what happened here, and I want it today”) to threatening regulatory action (e.g., initiating a “robust anti-trust program” if the platform didn’t comply).
This seems like the very “indirect coercion” that Vullo found unconstitutional. Instead, the Court disposed of the case on standing—not even reaching the merits of the First Amendment issues.
The Court held that no plaintiff had standing to seek an injunction because they could not prove a tight linkage between a particular threat and a platform’s decision to suppress particular content.
Applying what might be called the Murder on the Orient Express rule, in essence, the Court held that if you can’t prove who struck the fatal blow, then government action presents no risk of future harm that can be enjoined.
Want to learn more? Cindy covered the risks of the Murthy opinion for the Federalist Society blog.
Eliminating Bias by Fiat
The two NetChoice cases, Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, were in response to legislative efforts by Florida and Texas, respectively, to regulate social media platforms and remove perceived bias by imposing rules related to content moderation policies..
Each state passed a lengthy and complex law seeking to eliminate bias in moderation. Both laws, however, were vague, ambiguous, and rife with First Amendment issues. NetChoice challenged both—successfully in the Eleventh Circuit and unsuccessfully in the Fifth Circuit.
But NetChoice brought a facial challenge in both cases — a bold move that requires proving that the law cannot satisfy the Constitution, no matter how it is applied. That was an uphill battle from the start and ultimately doomed both cases, which have been sent back to the lower courts for a more detailed analysis whether any application of the laws passes constitutional muster.
AFPF filed an amicus brief supporting NetChoice in both cases, highlighting how social media has been instrumental in promoting voices from all backgrounds and perspectives and that attempts to control speech by relabeling it as a regulable activity are dangerous.
Speak for Yourself….
Two more cases that went hand in hand were Lindke v. Freed and O’Connor-Ratcliff v. Garnier.
In these, the Court was asked if, under the First Amendment, public officials can block individuals from the officials’ personal social media accounts.
As one might expect, the Court’s answer was: It depends.
….and Don’t Talk About Me
Finally, the Court decided Vidal v. Elster, which asked whether the First Amendment requires the government to register a trademark that includes the name of a public figure.
Unsurprisingly, the Court held that the First Amendment does not include the right to piggyback off the goodwill of another person’s name by trademarking it. The Court emphasized that this is a narrow ruling, applicable only to personal names and not to all content-based trademark restrictions.
So Where Do We Go From Here?
This plethora of rulings from the nation’s highest court raises the question of what can be done to protect free speech in the future.
The common thread in the Vullo, Murthy, and NetChoice cases is actions originating from the administrative state.
- In Vullo, the primary person responsible for the violation was a high-ranking member of the administrative state.
- In Murthy, many communications between the government and platforms came from various members of the administrative state…
- … which became the thrust of the driving force behind passing the laws that were challenged in the NetChoice cases.
As our colleague Casey Mattox explained in his recent piece in The Hill, there is a need to refocus on reigning in the administrative state to solve some of these issues. As he explains:
The Constitution only gives Congress the power to legislate. As the government body most accountable to the people, it makes the laws. Thousands of unelected Washington bureaucrats in administrative agencies don’t have the authority to impose “law” through pressure campaigns to police Americans’ speech on social media.
Congress should consider legislative solutions that tackle the problems identified in these cases.
- Early proposals such as H.R. 140, the Protecting Speech from Government Interference Act, brought by Representative Comer, offer a first stab at tackling the issue head-on by restricting government employees in their communications with these platforms.
- The Accountability for Government Censorship Act, H.R. 1162, attempts to require a report to create documentation of past interactions between the administrative state and the platforms.
- Another proposal, the Censorship Accountability Act, H.R. 4848, and a similar bill in the Senate, the Standing to Challenge Government Censorship Act, seek to expand individuals’ ability to bring claims against government officials for violating their First Amendment rights.
- Another potential solution is mandating transparency by requiring disclosure from government officials when engaging in conversations with platforms surrounding user content.
An alternative option would be for the next administration in 2025 to consider doing an executive order tackling the issue of jawboning by the government. Matt Perault at the University of North Carolina at Chapel Hill tried laying out what such an EO could look like in a piece for Lawfare.
However, with any action done by executive fiat, it is worth remembering that it is only worth the paper it is written on and could be easily reversed by any future administration.
The reality is that the cases the Supreme Court considered this term represent the beginning of what is both a critical and deeper conversation that needs to be had surrounding the nexus of government communications and our constitutionally protected right to free speech.
Regardless of which party is in control of the government, their agents shouldn’t be able to abuse their power to influence the content decisions of platforms.
We at AFP are ready to drive that conversation and work tirelessly to ensure that your First Amendment rights remain free from government overreach and censorship.
— With commentary from Cindy Crawford and James Czerniawski
