Democratic AGs Urge SCOTUS to Strengthen Censorship Authority

The share of U.S. adults who favor government intervention to restrict false information has grown 50 percent in the last five years, and Democrats are nearly twice as likely as Republicans to support that intervention. Democratic state officials are now taking action to urge the Supreme Court to roll back longstanding First Amendment freedoms, belying their party’s claimed commitment to preserving democracy.
Representing the Democratic attorneys general of 21 other states plus the District of Columbia, New York Attorney General Letitia James recently filed an amicus brief with the Supreme Court asking the Court to reverse the 5th Circuit’s 2023 decision in Missouri v. Biden, which ordered the federal government to stop pressuring social media to censor disfavored speech. (On reaching the Supreme Court, the case is now called Murthy v. Missouri.)
James is no fan of free speech. Following the breakout of hostilities in Gaza, she demanded that six social media companies “stop the spread of hateful content” on their sites. The platforms, she announced, had been used to “spread horrific material, disseminate threats, and encourage violence” and must “prohibit the spread of violent rhetoric.”
Several of James’s co-authors on the amicus brief have similar records, as do their gubernatorial sidekicks. California Gov. Gavin Newsom and Attorney General Rob Bonta have sought to chill constitutionally protected expression they dislike, regularly denigrating it as “disinformation,” “hate speech,” and “extremism.” In 2021, Bonta wrote Facebook urging it to remove Robert F. Kennedy Jr.’s page. “Facebook shouldn’t be giving certain users a free pass to spread misinformation,” he said. In November 2022, Bonta threatened legal action against five social media companies unless they took steps to rid their platforms of “the dangerous disinformation, misinformation, conspiracy theories, and threats that fuel political violence, spread fear and distrust, and ultimately chill our democratic process.”
Illinois Attorney General Kwame Raoul championed a law that would have prohibited pregnancy centers from using “deceptive acts” to dissuade women from seeking abortions. He agreed to a federal court order enjoining its enforcement after the court described the law as “both stupid and likely unconstitutional.” Raoul’s thinking reflects that of his patron, Illinois Gov. J.B. Pritzker. “There ought to be a private right of action for anybody that’s dissuaded or told something that’s false, that’s the important thing. What they say to people, that’s fine, as long as what they’re doing isn’t deceptive,” Pritzker said. “You have a right to free speech, but you don’t have a right to lie.”
These various anti-free speech stances have now been bundled and amplified by James and her 22 colleagues in their brief objecting to the 5th Circuit’s decision. What the 5th Circuit regarded as essentially governmental coercion, James and company see as “best practices.” They are intent on “mitigating the spread of harmful content on social-media platforms.” They sound the alarm about tweets that contain “misleading information about the electoral process.” They want to halt the “proliferation of potentially harmful content—ranging from extremist videos to viral challenges encouraging users to engage in dangerous and potentially criminal activities.” They are worried about the dangers of “promoting extremist violence.”
Despite being attorneys general who ought to have a basic understanding of the American Constitution, these authors seem unaware that their sweeping arguments for censorship don’t apply merely to social media platforms—they are a frontal attack on three basic tenets of First Amendment jurisprudence.
First, speech cannot be suppressed unless it is, in the Supreme Court’s words in the 1969 Brandenburg case, “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Mere advocacy of law violation or violence, as opposed to incitement, is constitutionally protected. James and company may think they should be able to censor calls for violence by one side or the other in Gaza and Ukraine, extremist propaganda, or Martin Luther King Jr.’s “Letter from Birmingham Jail” justifying civil disobedience—but the Supreme Court has disagreed.
Second, hatred, racism, and extremist ideologies are viewpoints, and it is up to individuals, not the government, to decide which viewpoints to adopt. The First Amendment, wrote Justice Thurgood Marshall for the Supreme Court in the 1972 case Police Department of City of Chicago v. Mosley, “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The Constitution does not give political officials the power to be guardians of public morality, responsible for diverting the public from wrongthink.
Third, lying is constitutionally protected. Formally designating information as false would require authoritatively identifying an official source of true information—instituting, as the Court has noted in the 2012 case U.S. v. Alvarez, a Ministry of Truth empowered to compile a potentially endless list of subjects about which false statements are punishable. The First Amendment protects Donald Trump’s right to claim that his inaugural crowd was larger than Barack Obama’s, as well as Joe Biden’s right to claim that he never discussed his son’s business dealings with him.
Precepts such as these mark the line between protected and unprotected speech. The 5th Circuit’s hands-off order in its Missouri v. Biden decision explicitly extends only to constitutionally protected speech. It expressly permits the states and social media companies to collaborate in taking down speech that is constitutionally unprotected, such as fighting words, true threats, or defamation.
Yet James’ brief shows no recognition of the distinction. Instead, it prattles on about how useful it is for the states to “publish nonbinding guidance or share suggested best practices” and “productively communicate” information on public health issues such as opioid abuse and e-cigarettes. But nothing in the 5th Circuit’s order stops the states from doing that. What James and company reject is communicating their worries about online content openly, like unprivileged common folk whose speech is subject to the scrutiny of an open, lively, and robust marketplace of ideas.
Unhappy with that option, however, the brief’s authors seem unaware that from Vietnam to Iraq to Afghanistan to COVID, the government itself has been a gushing fount of falsehoods; that, as the Supreme Court said in Alvarez, the “suppression of speech by the government can make exposure of falsity more difficult, not less so”; that the censors’ machinery they advocate for, once institutionalized, is easily turned against them when their adversaries gain power; and that the censors’ heavy hand inevitably alienates the public, generates distrust, fosters social division and political instability, and makes martyrs out of the silenced and valorizes their message, driving it underground where it festers unrebutted.
That such an amicus brief from James and her Democratic cohorts could even be submitted underscores that it is not merely freedom of speech—the right on which all other freedoms depend—that has become a partisan issue. The authors proclaim their devotion to “democratic processes.” Yet democracy and free speech rest on the same premise: that the people, not elite overseers, are able to sort out truth from falsehood and to determine for themselves what’s in their own best interests. If you don’t believe that, you don’t believe in either free speech or democracy.