As the dean of a public university law school, do I violate my students’ free speech rights when I encourage them to speak respectfully with one another, demonstrate civility, and refrain from hate speech? There are countless instances in which government officials speak out — does that chill free speech among those who disagree with what an official says? In two Supreme Court cases this term, including one decided Wednesday, the justices rightly reaffirmed that speech by government officials violates the First Amendment only if it includes an explicit threat of sanctions.
The Supreme Court last addressed this issue in 1963, in Bantam Books v. Sullivan. That case involved a Rhode Island Commission to Promote Morality in Youth that identified “objectionable” books and wrote to sellers urging them to stop selling those books. The letter also informed the recipient that the commission recommended obscenity cases to prosecutors and turned over its list of distributors of objectionable books to local police. In fact, a police officer would often follow up and visit booksellers to see what action had been taken. The Supreme Court concluded that such pressure constituted an unconstitutional infringement of freedom of expression, even though no books were actually banned and no legal proceedings were initiated.
In the case National Rifle Association v. Vullo, decided on May 30, the court applied the Bantam Books decision, allowing a lawsuit to be filed against Maria Vullo, who had been superintendent of the New York Department of Financial Services. After the school shooting in Parkland, Florida, in which 17 students and staff members were killed, Vullo encouraged officials at the insurance companies and banks, which she regulated, not to do any more business with the school. NRA: Vullo would not initiate proceedings against the companies in exchange for the companies ceasing their relationships with the NRA.
In a unanimous ruling, the Supreme Court determined that the NRA had a First Amendment claim. Justice Sonia Sotomayor wrote for the court, reaffirming Bantam Books v. Sullivan: “Government officials cannot attempt to coerce private parties to punish or suppress opinions of which the government disapproves.”
On Wednesday, in the case of Murthy vs. Missouri, the court considered a lawsuit brought by two state governments and five social media users against the Biden administration and many federal agencies, alleging that the government violated the First Amendment by encouraging social media platforms to remove posts. false speeches. No platforms were threatened with prosecution or acquitted, but companies were told that if they did not remove false speech (especially about the effects of COVID-19 vaccines and the 2020 presidential election), they would face prosecution. more regulations in the future.
A conservative panel of the U.S. Court of Appeals for the Fifth Circuit concluded that this amounted to a violation of the First Amendment. But by a vote of 6 to 3, the Supreme Court ordered that the case be dismissed for lack of standing. (To have standing to sue in federal court, a plaintiff must show that he or she has been harmed, that the harm was caused by the defendant, and that a favorable court decision is likely to remedy the harm.)
The Supreme Court said that none of the plaintiffs could prove that social media companies removed false speech due to government coercion, so where was the harm? The court noted that the “platforms had independent incentives to moderate content and often exercised their own discretion.”
Although the Murthy decision is based on standing, it has crucial implications for the First Amendment. Indeed, Justice Samuel Alito, in his dissent, described this as “one of the most important free speech cases to come before this Court in years.” The premise of the majority decision is that social media companies are private entities and can decide for themselves what speech to carry and what to remove. The government encouraging them to remove false speech only violates the First Amendment if it can be shown that the government caused, and will in the future cause, the speech to be blocked.
Both the NRA case and the social media case reaffirm that speech by government officials violates the First Amendment only if it is coercive and only if it can be shown to cause harm. That means public university deans like me should not fear a violation of the First Amendment for encouraging responsible speech by my students.
These decisions are especially important in the context of the Internet and social media, where false speech is a big problem. The government has few tools to deal with it. The court's rulings preserve officials' ability to encourage social media platforms to remove false speech.
Less false speech on the Internet and social media will benefit us all.
Erwin Chemerinsky is an Opinion contributor and dean of the UC Berkeley School of Law.
