In recent decades, the Court has been extremely skeptical when the government, acting as sovereign (as opposed to employer, subsidizer, educator, etc.) tries to suppress speech based on its content. But of course there has also long been a tradition of Justices arguing in favor of allowing restrictions when the government’s needs appear especially urgent. Justice Breyer offers a recent example, and of course past Justices had taken similar views. Chief Justice Rehnquist was more embracing of speech restrictions, for instance, especially in his early years. Justice Frankfurter was another example, back in the 1940s and 1950s. (For more on the link between Justice Frankfurter’s and Justice Breyer’s approaches, see here.)
Yesterday’s Murthy v. Missouri argument suggests that Justice Ketanji Brown Jackson may take a similar approach. Recall that the heart of the case is about two related but conceptually separate issues: (1) whether the government coerced platforms into restricting certain user speech; (2) whether, if the government merely substantially encouraged platforms to restrict such speech rather than coercing them, that would itself be subject to First Amendment scrutiny. Most of the Justices asked the lawyers about these two matters, and about related procedural questions.
But several of Justice Jackson’s questions raised the possibility that the government may indeed be allowed even to coerce platforms into restricting speech—including speech that doesn’t fall within the familiar First Amendment exceptions (such as for true threats or solicitation of crime). Some excerpts (emphases added):
Now, as Justice Jackson notes, there’s ample precedent for upholding even content-based speech restrictions (again, imposed by the government as sovereign, and not just as employer or subsidizer or the like) when the restrictions are “narrowly tailored” to a “compelling government interest.” But the strength of modern First Amendment doctrine is that the Court has very rarely upheld restrictions on this basis. Consider, for instance, the violent video games case, where the Court struck down (over Justice Breyer’s dissent) a narrow restriction on children’s acquiring violent video games themselves (without parental participation).
Likewise, speech generally can’t be restricted even if it generally persuades people to do harmful things, in the absence of some specific solicitation of crime against a particular target, or the counseling of imminent illegal conduct. And in the Pentagon Papers case (1971), the Court held (6-3) that the government generally can’t block the publication even of “classified information.”
It seems to me that Justice Jackson would take an approach that’s more open to speech restrictions, in order to avoid “the First Amendment hamstringing the government in significant ways in the most important time periods.” This would not just be limited to the government trying to persuade platforms or other intermediaries to block third parties’ speech, but would include “restrictions of speech,” “prohibit[ing] certain speech on the Internet or otherwise,” “actually requir[ing] that speech be suppressed,” “requir[ing] this kind of censorship,” and using “coercion,” “compulsion,” and “pressur[e].”
Again, other Justices have taken that view. As to “the government … say[ing] to the [newspapers]” that they may not publish “classified information,” Chief Justice Burger and Justices Harlan and Blackmun would have allowed the government to say just that in their Pentagon Papers dissent. But it struck me as noteworthy that Justice Jackson was joining this tradition.