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Murthy is probably the worst free speech decision in history

In recent times Murthy v. Missouri decision, the Supreme Court hammered home the troubling conclusion that, under the Court’s doctrines, the First Amendment is, for all practical purposes, unenforceable against large-scale government censorship. The decision is a strong contender for being the worst speech decision in the court’s history.

(I must confess a personal interest in all this: My civil rights organization, the New Civil Liberties Alliancerepresented individual plaintiffs in Murthy.)

All along there were certain risks. As I pointed out in an article called “Courting censorship”, Supreme Court doctrine has allowed and thereby invited the federal government to orchestrate massive censorship through social media websites. The Murthy cases unfortunately confirm the dangers of the Court’s doctrines.

One danger was that the court would try to avoid reaching a factual decision. Months before Murthy was asserted, there was reason to fear that the court would try to dodge the speech issue by disposing of the case on standing.

In its opinion, the court denied that the plaintiffs had standing by inventing what Justice Alito Call “a new and heightened standard” of traceability — a standard so onerous that, if the court adheres to it in other cases, almost no one will be able to bring suit. It’s unrealistic enough that the court won’t stick to it in future cases.

“The evidence was more than sufficient to establish” at least one plaintiff’s “standing to sue,” and thus, because Alito’s disst pointed out, “we have an obligation to address the free speech issue.” Unfortunately, the Court, again in Alito’s words, “is shirking that duty and thereby … allowing this case to stand as an attractive model for future officials seeking to control what the people say, hear and think.” The case gives the green light for the government to engage in further censorship.

A second problem was doctrinal. The Supreme Court has developed a doctrine that encourages the government to believe it “can censor Americans through private entities as long as it is not overly coercive.” Accordingly, with painful predictability, the oral argument entered Murthy focused on whether or not there had been state coercion.

The implications were not lost on the government. Although it had slowed its censorship machine during litigation, it revved it up after the court’s hearing emphasized coercion. As said Matt Taibbi“The FBI and Department of Homeland Security have reportedly resumed contact with Internet platforms after oral arguments in this case in March led them to expect a favorable decision.”

However, the First Amendment says nothing about coercion. On the contrary, it distinguishes between “shortening” freedom of expression and “prohibiting” free exercise of religion. As I have explained in detail, the amendment thereby makes clear that the constitutional standard for a speech offense is shorten, that is, reduce, freedom of expression, not coercion. A mere reduction of liberty violates the First Amendment.

The court in Murthy, but did not realize the meaning of the word “abbreviate”. This has partial significance for the standing question. It is much more difficult to show that the plaintiffs’ damages can be traced to authorities constraint than showing that they are traceable to the government shorten of freedom of expression. More substantively, if the Court had recognized the First Amendment’s words “abbreviating,” it would have made clear to the government that it cannot use evasions to get away with censorship.

Other doctrinal disasters included the Court’s casual indifference to the rights of listeners or readers—the right of speakers to hear the speech of others. The Court treated such rights as if they were independent of speakers’ rights, and therefore concluded that they would broadly invite anyone to sue the government.

But listeners’ rights are most clearly grounded in the First Amendment when understood as the right of speakers to hear the speech of others, as this is essential for speakers to formulate and refine their own speech. Speaker’s rightpp hearing what others say is therefore at the heart of listeners’ rights. From this modest understanding of listeners’ rights, plaintiffs’ rights which listener should have been understood as part of their rights which speaker — An analysis that would have avoided hyperbolic legal fears to allow everyone to sue.

The Court’s concern that recognizing listeners’ rights would open up the courts to too many plaintiffs is particularly troubling when the government has censored millions upon millions of posts with the primary goal of suppressing what the American people can hear or read. When the most massive censorship in American history prevents Americans from learning often true opinions on matters of crucial public interest, it should be no surprise that there are many claimants. The Court’s shameful reasoning suggests that when the government censors large numbers of Americans, we lose our right to redress.

The greatest danger comes from the court’s tolerance of the sub-administrative power that the government uses to entrap private parties into instruments of control. Administrative regulation preferably takes place through the regulation of messages and comments. In contrast, sub-administrative regulation operates through informal persuasion, including subtle threats, regulatory hassles, and illegitimate incentives. Through such means, the government can force the private platforms to perform state-orchestrated censorship of their users.

The federal government once had no such sub-administrative power, and thus had little control over speech. It could punish speakers only by prosecution—that is, by going to court and showing that the defendant’s speech violated the criminal law. But now federal officials can subtly get the platforms to suppress speech — often secretly, so that an individual doesn’t even know he’s being suppressed. Thus, whereas traditionally the government could only punish the individual, it can now make his speech disappear.

Even worse, the court’s tolerance of this sub-administrative privatization of censorship reverses the burden of proof. The government once had to prove to a judge and jury that a speaker’s words were illegal. Now the speaker must instead prove that the government censored him.

Furthermore, there is no effective cure. The Court’s qualified immunity doctrine makes it nearly impossible for censored individuals to recover damages for past tense censorship. And the hurdles to getting an injunction make it nearly impossible to stop future censorship. For example, the government can claim, as it did in Murthy, that it no longer censors the affected individual. Then, poof! The possibility of an injunction disappears. Moreover, because of the court’s indifference to the rights of listeners—even to the right of speakers to hear the speech of others, an injunction can protect only a handful of individuals; it cannot stop the government’s massive censorship of large numbers of Americans.

The court thus puts Americans affected by censorship in an unenviable position. It reverses the burden of proof and denies Americans any effective remedy.

So, for several reasons, Murthy is probably the worst speaking decision in American history. In the face of the most pervasive censorship in American history, the decision fails to recognize either the reality of censorship or the constitutional barriers to it. In practical terms, the decision calls for continued federal censorship of social media platforms. It thereby all but guarantees that another election cycle will be compromised by government censorship and condemns a hitherto free society to the specter of mental slavery.

This article was originally published by RealClearPolitics and available via RealClearWire.


Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and president of the New Civil Liberties Alliance.

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