The Constitution’s guarantee of free speech is for the people; government does not share that First Amendment right. But government, to operate, must speak. On Monday, the Supreme Court tries, in two hearings, to clarify the sometimes-hazy line between official speech that seeks to inform or persuade, and official compulsion or censorship of others’ speech.
The two cases test that line in the controversial areas of covid vaccinations and mask-wearing, election fraud, and gun control. One case involves the federal government, the other a state government. The outcome of both could shape the future of government communication and influence the power of government to promote social responsibility by private businesses.
First hearing Monday: Murthy, U.S. Surgeon General (and others) v. Missouri and Louisiana The hearing will begin at 10 a.m., and is scheduled for one hour.
Background: Political life in modern America often resembles a street fight, two rival gangs warring constantly to control the same territory. These days, the scene for such combat is the Internet, with each side trying to control what is said there.
The first case to be heard on Monday puts that struggle before the Supreme Court as a test of a constitutional theory that is novel in its use against Web platforms. Since the Constitution’s protection of free speech is intended as a check on government, not private actors, the theory is that the federal government has turned some of those platforms into its own instruments of official censorship.
The so-called “state action doctrine” (with “state” meaning government, federal or state) is a theory that goes to the foundation of the U.S. Constitution: the basic document was intended as a check on the power of government, to protect the liberty of the private citizen. But, sometimes, the actions of private individuals can turn into official action. Has that happened in this case? It depends upon how one defines “state action.”
It turns out that the Supreme Court may have already made a significant start on clarifying that concept in the context of Internet speech, even before hearing this case. Just last Friday, the Court issued a unanimous ruling in the case of a public official who put information on his Facebook page, and then blocked some users from commenting on the entries. There was no doubt that he was an official, of a local government in Michigan. That, however, was not enough to settle the status of his Facebook entries as official speech or private speech.
A public official, according to this new decision, speaks as a state actor only if he or she had the specific authority to speak for the government and only if that authority was being used in making his specific online entries. That approach to “state action” appears to narrow the concept significantly, and it could be a clue that the states who sued in the case being heard on Monday will have a difficult time convincing the Court that private websites were performing official functions when the federal government encouraged or pressed them to edit their content to eliminate disinformation.
The Justices did issue their new ruling last week, knowing that they were about to return to the issue in Monday’s hearing, at least implying that the decision might have a bearing on the new case. The hearing could give some clues on that.
Facts of this case: The dispute here was described this way by the first judge to rule on it, a federal trial judge in Monroe, LA: “The present case arguably involves the most massive attack against free speech in United States’ history.” Opening with that obvious exaggeration, it was no surprise that U.S. District Judge Terry A. Doughty felt a need to issue a sweeping order against scores of federal officials, ranging from White House covid adviser Dr. Anthony S. Fauci to U.S. Surgeon General Vivek H. Murthy, plus several federal agencies, ranging from the FBI to the Center for Disease Control.
Judge Doughty picked out seven groups of officials and agencies, and found that they had transformed into official “state action” the editing functions (“content-moderation” policies) of privately-run platforms such as Facebook, YouTube and X (formerly Twitter). The censorship claimed in the case, the judge wrote, “almost exclusively targeted conservative speech,” dealing with opposition to covid vaccinations and mask-wearing, theories about the origins of covid, and arguments that the 2020 presidential election had been stolen from Donald Trump.
The lawsuit contended that, although editing or deleting of such entries had been done by private platforms, “government officials were the ones pulling the strings” in what amounted to “a sprawling Censorship Enterprise.” Concluding that the states and the private users of the Web had proved their case of coercion and censorship, Judge Doughty barred the federal officials and agencies from “communication of any kind with social media companies…pressuring the companies to change their guidelines for removing content” and from flagging particular posts that the government argued was disinformation.
A federal appeals court upheld much of Judge Doughty’s order, and concluded that the states as well as the private Web users had been harmed by the federal intervention and that the harms would continue because the platforms would continue to engage in “robust” editing and deleting at the continued urging of federal officials.
The platforms’ response to the federal urging, the appeals court found, amounted to “state action” because, although they were privately operated, they were “coerced or significantly encouraged by the government to such a degree that the ‘choice’ must in law be deemed to be that of the government.”
The Biden Administration’s Justice Department, defending the federal officials and agencies and arguing that their actions were intended only to persuade or inform, and not to coerce or censor, appealed to the Supreme Court. “The government,” it told the Court, “is entitled to speak for itself…even if government officials state their views in strong terms and even if private actors change their speech or conduct in response.”
The Department’s appeal argued that, even after the appeals court had narrowed Judge Doughty’s order, the restrictions would still affect thousands of federal officials and many federal agencies. Before filing that appeal, the Department had persuaded the Court last October to temporarily put the lower courts’ orders on hold, when it agreed to review the appeal. That delay was ordered by a 5-to-4 vote; the hold remains in effect.
The questions before the Court: Did the two states and the five individual Web users have a right to file their lawsuit, since they were not harmed in a legal sense by the platforms’ editing in the past and cannot prove they would be harmed by federal action in the future? Did the contacts federal officials made to private social media platforms convert their editing into official action in violation of the First Amendment? Were the lower court orders far too broad, and thus beyond those courts’ powers?
Significance: Over the four decades of history known as the Digital Age, America has developed a keen fascination with and deep affection for the Internet as it projects widely their ideas and retrieves for them discoveries from around the globe. Today, the Pew Research Center tells us, 86 percent of Americans turn to that source for at least some of the news they read or hear.
But, in recent years, more and more Americans have grown troubled by content that is too easily available on the Web: disinformation. Recently, a Washington-based policy group, the Council for Responsible Social Media, summed up that grim reality: “The harms the platforms are causing are widespread: degraded mental health especially for our children, growing polarization, fragile democracies disrupted by propaganda, conspiracy theories going mainstream and increased distrust of foundational institutions. How is this happening? The simple answer is that the Big Tech companies are operating with no serious accountability or oversight.”
Some have put the blame, at least partly, on the Supreme Court. Congress’s first attempt to impose government controls on the Internet, the Communications Decency Act of 1996, included provisions to stop online media from intentionally transmitting obscene content to minors. In 1997, the Court, relying on traditional First Amendment free-speech principles, struck down those provisions. Online content, the decision declared, gets the same sturdy protection as other publishers or communicators. That has stymied Congress from attempting new controls ever since.
This case provides the Court with its second opportunity during the current term to clarify the scope of that constitutional protection for speech in today’s digital environment. Just last month, the Court held a hearing on the question of whether the First Amendment bars state legislatures from imposing direct controls on how social media platforms select, edit and present information supplied by others. A decision on that question is still awaited.
In this case, the Court will move to a historic constitutional clash between state and federal governments, with private users of the Web also involved, over the legitimacy of federal policymakers seeking to curtail disinformation and harmful conspiracy theories on the Internet. It is a legal battle that is unfolding against the background of America’s polarized politics and public discourse.
This case will be a rigorous test of the Court’s capacity to look beyond the heated discourse over highly sensitive public policy issues, to determine whether the Constitution can supply a clear line on who can control, or at least influence, the content offered on social media.
Second hearing Monday: National Rifle Association v. Gullo This hearing, scheduled for one hour, will begin soon after the social media case ends.
Background: It is a fact, frequently demonstrated, that the National Rifle Association has been one of the most politically powerful private organization in America, since its founding in 1871. Its stubborn resistance to almost any form of gun control is legendary. Long before the Supreme Court in the 2008 decision in District of Columbia v. Heller interpreted the Constitution’s Second Amendment to protect an individual right to own a gun, the NRA was subsidizing scholars to do research promoting that idea. The organization is frequently blamed, rightly or wrongly, by gun-control advocates for rampant gun violence.
One of the organization’s most serious legal challenges has been unfolding for almost four years in New York state courts, with the state Attorney General pursuing a deeply threatening claim of broad misconduct that could drive the organization near to collapse. That case resulted just last month in a jury verdict of sweeping liability for corruption and financial mishandling. The NRA now faces further court proceedings in that case that could put it under strict control of a New York state official.
Whatever its reputation and however dark its future, the NRA does have a clear constitutional right under the First Amendment to express its views, including strident advocacy of the Second Amendment.
The association, in Monday’s hearing, will be pursuing its claim that its controversial promotion of gun rights drew the wrath of state officials in New York, in violation of its right to free speech. It is a dispute that has created some odd allies: among those siding, at least partly, with the NRA is the Biden Administration’s Justice Department.
Facts of this case: The constitutional dispute here arose out of public outrage over the mass shooting that killed 17 students and staff members of Marjorie Stoneman Douglas High School in Parkland, FL, in February 2018.
At the time of that incident, New York’s State Department of Financial Services – a state agency regulating banks and insurance companies – was in the early stages of an investigation of insurers who provided policies to NRA members. The agency ultimately concluded that at least some of those policies were illegal under state law because they insured New York residents who had been involved in shootings that killed or wounded someone.
After the Parkland incident, some insurance companies regulated by that agency were among businesses across America that decided to cut ties with the NRA in protest. The agency, NRA would later claim in a lawsuit, began holding meetings with leaders of regulated financial companies to encourage them to end their dealings with the organization.
The lawsuit named the finance agency’s superintendent at that time, Maria T. Vullo, and claimed that she told regulated companies that they might face action by the agency for violating state laws if they maintained business relations with the NRA. The organization contended that Vullo, by those meetings and by public statements, made it clear that she was less interested in acting against banks and insurers than she was in weakening the NRA. One company, the lawsuit said, told NRA that it would like to continue doing business but feared the loss of its state license if it did.
In addition to the meetings and public statements, Vullo was accused of issuing official guidelines to banks and insurers mentioning the public “backlash” over the Florida shooting and cautioning those firms that they may suffer harm to their business reputations if they maintained ties with the gun rights group. That, the NRA argued, was a direct warning to financial institutions that they would be closely monitored by the state if they did not manage that risk adequately – a direct form of coercion. Failure by a financial institution to manage such a risk, according to NRA, could lead to fines by the state agency. In addition, the organization cited court orders that the agency had obtained to settle official complaints against those who provided insurance to NRA members, policies that the agency deemed to be illegal under state law.
All of that activity, the NRA claimed, was a way to punish it for expressing its organization’s defense of the Second Amendment, so its free-speech rights were directly impaired.
Filing its lawsuit in federal trial court in New York, the NRA complained of systematic censorship for its gun rights advocacy and a separate system of retaliation for expressing such views. Then-Superintendent Vullo sought to have the case dismissed. While the trial judge refused that request, the judge did allow the case to go forward on the First Amendment theory.
A federal appeals court, however, ordered the case dismissed, concluding that NRA had not sufficiently engaged in any conduct that violated the Constitution. That court interpreted the meetings, public statements and the official guidance by Vullo as even-handed and non-threatening, seeking only to persuade, not censor or coerce. It also ruled that Vullo was protected by a form of legal immunity, because it was not clear at the time that the First Amendment barred such official action.
The NRA then appealed to the Supreme Court, arguing that lower courts are split on these issues.
The questions before the Court: Has the NRA offered enough proof of a violation of its First Amendment rights that this lawsuit should be allowed to be tried in federal court? When does official government regulation of some private businesses threaten the free-speech rights of an advocacy group like NRA that has commercial dealings with those firms?
Significance: This case is fairly closely related to the social media case, in the sense that both seek to clarify when actions by government officials – pursuing their own form of official expression – compel or coerce the expression of a private entity.
This case, though, is somewhat more straightforward, because it does not involve the “state action” theory in the context of Internet speech. There is no doubt that Superintendent Vullo was exercising official governmental powers when she opened the investigation of NRA and engaged in a variety of actual or potential forms of shaping the business behavior of firms under her power.
The NRA’s appeal is a broad attempt to challenge, as unconstitutional, every one of the actions that it asserts Vullo had taken. The Biden Administration’s Justice Department has entered the case, and will join in the hearing on the NRA’s side, although it does argue that not all of the actions by the state ran afoul of the First Amendment. It does contend, though, that NRA has offered enough proof to justify letting its case be tried.
The public policy issue at stake in this case – the demand for gun control in the wake of the modern rampage of mass shootings – makes it at least as controversial as the Internet content case, and thus challenges the Justices to put aside the emotional gravity of gun violence.
The NRA probably enters the hearing Monday with some advantage, constitutionally speaking, because the Court’s dominant majority of six conservative Justices has gone far to bolster the Second Amendment as one of the most expansive grants of individual rights in the Constitution.
The Court will broadcast “live” the audio (no video) of these hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
