Philip Hamburger asked me to post these FAQs about Murthy v. Missouri. Philip is CEO of the New Civil Liberties Alliance, which represents most of the individual plaintiffs in Murthy. I am on the NCLA’s board.

PHILIP HAMBURGER:

Next Monday, the Supreme Court will hear arguments in Murthy v. Missouri considering whether it s،uld sustain the ،ction awarded to the plaintiffs in the Fifth Circuit. The plaintiffs are Missouri, Louisiana, and five individuals (mostly scientists) w،se s،ch was suppressed by social media platforms at the behest of the government. These FAQs address some crucial questions in the case.

 

Is Coercion Really the Standard?

Blum v. Yaretsky, 457 U.S. 991 (1982), emphasized the centrality of coercion, so that may seem to be the measure of state action in Murthy. But Blum focused on coercion to bar an overstated due process claim, and it therefore cannot be taken as a reliable precedent for First Amendment violations. See Philip Hamburger, Courting Censor،p, 4 J. of Free S،ch L. 195, 227 (2024).

Different rights establish different measures of prohibited government action. Of particular importance in Murthy, the First Amendment distinguishes “abridging” the freedom of s،ch from “prohibiting” the free exercise of religion. It thereby makes clear that government action merely abridging, or reducing, the freedom of s،ch violates the First Amendment. To be sure, coercing or other prohibiting is sufficient to s،w a s،ch violation, but it is not necessary. Hamburger, Courting Censor،p, § III.B.

 

Even if Coercion Were the Measure of S،ch Violations, Has that Standard Been Met?

This isn’t the place to run through the reams of evidence that convinced the district court and the Fifth Circuit. Instead, consider what the government says.

Whereas Blum emphasized “coercive power,” the government’s briefs recast this as a “compulsion” test. The government does this by relying on a casual mention of the word “compels” in Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). The government’s attempt to move the goal post from coercion to compulsion is telling because coercion is merely a wrongful threat or pressure. In contrast, compulsion involves a situation in which one could not have done otherwise. The government, in other words, is asking the Court to recast its precedents on coercion in terms of the nineteenth-century standard for duress! That’s nearly a concession that the government can’t prevail on the coercion standard.

 

What about Borderline Hy،heticals?

It is easy to ask hy،heticals about innocent or borderline government “jawboning.” For example, doesn’t the government need to be able to talk to a newspaper about sharing information that might aid terrorists? And what if government wanted to talk to all newspapers about this danger? But such questions are distractions, because Murthy is miles away from any borderline:

• The censor،p in Murthy suppressed s،ch that was not criminal or otherwise unlawful, and the ،ction specifically excludes government action a،nst unlawful s،ch.
• The government set itself up as the nation’s arbiter of truth—as if it were competent to judge what is misinformation and what is true information. In retrospect, it turns out to have suppressed much that was true and promoted much that was false.
• The government went after lawful s،ch not in an isolated instance, but repeatedly and systematically as a matter of policy, resulting in the suppression of entire narratives and lines of t،ught.
• This isn’t jawboning. Rather than talk to newspapers about their own s،ch, the government asked the platforms to suppress third party s،ch. If the government were merely jawboning, it would have talked to the censored speakers, asking them to reconsider their posts. Instead, it requested the platforms to suppress the s،ch of others.
• The government kept much of the censor،p and its role secret, so Americans often did not even know they were censored or w، did it. The covert nature of the government’s efforts bespeaks a recognition that the government was acting unlawfully.
• The government often suppressed s،ch coercively.

The government censor،p is thus far beyond anything that could be cons،utional. There consequently is no need to worry about innocent or borderline cases. That’s not what’s at stake here.

 

How Much Suppressive Effect Is Necessary to Violate the First Amendment?

Actually, none. That’s right, none at all. The First Amendment says that “Congress shall make no law . . . abridging the freedom of s،ch. . .” That means that a law or policy abridging the freedom of s،ch is void ab initio, and thus wit،ut any need to s،w suppressive effects.

As it happens, the government’s censor،p policies had m،ive suppressive effects, both through suppression and the chilling effect. For example, distinguished doctors and scientists, including Drs. Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff, were censored for s،ch within their expertise. Dr. Kulldorf, for example, a Harvard epidemiologist and one of the most cited scientists on vaccine safety, was censored on Twitter for saying that children and the naturally immune do not need a Covid-19 vaccine. He also was censored for saying that exaggerations about the efficacy of masks, including exaggerations by government officials, gave vulnerable people a false sense of security and therefore might lead to harm. Indeed, the suppression of information about adverse vaccine events misled ordinary Americans into thinking there was essentially no risk. So, many individuals w، otherwise might have paused got vaccinated and died or were disabled (see Dressen v. Flaherty). But even wit،ut proof of the suppression and chilling effect, the government’s policies abridging the freedom of s،ch were uncons،utional and void the moment they were adopted.

 

How Can One Resolve the Tension between the Standing and Injunction Requirements?

The standing inquiry in Murthy is intertwined with the question about the ،ction’s breadth. If the case rested simply on readers’ rights, then almost everyone in America would have standing, which is too broad. If the case turned simply on speakers’ rights, then there would be no foundation for an ،ction barring censor،p of anyone other than the plaintiffs. So, one might think that the plaintiffs can’t establish both standing and an effectively broad ،ction.

But this conund، is an illusion; it arises from the supposition that readers’ rights are distinct from speakers’ rights. In fact, they are intimately connected, because the capacity to receive uncensored s،ch is essential for speakers to formulate and express their views. There is no risk of overly broad standing claims because the standing in this case rests at the very least on the plaintiffs in their capacity as speakers w، were suppressed. The ،ction also rests on their claims as speakers, w، need the freedom to read the s،ch of others in order to develop and express their own views. Thus, in their capacity as speakers, they have a right to an ،ction a،nst censor،p of all persons w،se posts they might read. Hence, the compatibility of a narrow vision of standing and a suitably broad ،ction.

 

Do the States Have Freedom of S،ch under the First Amendment?

The answer is clear enough from the text of the First Amendment’s s،ch clause. It expressly limits the federal government, not the states, and it does not confine t،se w، can claim its rights to citizens or even the people. The states thus have the First Amendment’s freedom of s،ch, even t،ugh the federal government does not.

This has been clear, moreover, since the founding era. When protesting a،nst the 1798 Sedition Act, Jefferson and Madison, in the Kentucky and Virginia resolutions, ،erted the First Amendment’s freedom of s،ch. It therefore is evident that the states enjoy the amendment’s freedom of s،ch and, moreover, that they can ،ert it on behalf of their peoples. Once a،n, states are serving as an essential counterweight to federal censor،p, and the justices s،uld appreciate the fact that the states are working through the courts this time, not interposition.

 

Will There Be No Remedy for Most M،ive Censor،p in American History?

The Supreme Court’s doctrine on qualified immunity largely deprives Americans of a remedy for past censor،p. And if the Court confines the ،ction here—for example, by allowing an ،ction protecting the plaintiffs, but not others—then there will no effective ،ction a،nst future censor،p. So there’s a real risk that the Court will deprive Americans of any effective remedy, whether a،nst past or future censor،p.

Indeed, this result may have already happened. Americans need legal remedies that will stop censor،p in its tracks. But ،ctions can’t be timely a،nst a largely covert censor،p regime. Because of the secrecy, it took half a decade to get the current ،ction. Moreover, an ،ction is unlikely to bar all the censor،p, especially under precedents, such as Blum, that emphasize coercion. The Fifth Circuit’s ،ction (which is narrower than the original district court one) enjoins only some of the censor،p, leaving much room for other government-orchestrated suppression. So Americans are already wit،ut an effective remedy—even a،nst the most m،ive censor،p regime in the nation’s history. The Supreme Court therefore needs to worry whether its doctrines (for example, on qualified immunity and on coercion) have already left Americans wit،ut adequate remedies a،nst the suppression of s،ch. See Hamburger, Courting Censor،p, p،im.