I found the oral argument of the case now styled Murthy v. Missouri last month to be utterly demoralizing. As soon as the oral argument concluded I rashly hazarded my assessment that it portends a victory for the massive censorship-industrial complex represented by the Biden administration, probably on procedural grounds (i.e., standing). My assessment was a hot take based on the tenor of the argument.
The argument seemed to me to reflect a fantasy world. It was unreal. In the case argued by Biden administration, the big sticks from the feds were simply here to lend a helping hand to their friends in social media. They all got along beautifully. No problem! The misinformation promoted by the government went unmentioned. The government appeared only as our benefactor.
Having written three posts about Professor Philip Hamburger’s work on the illegitimacy of administrative law last week, I heard from Professor Hamburger on the substantive First Amendment issue before the Supreme Court. As I say, the Court may well avoid the merits of the First Amendment issue and leave the censorship-industrial complex standing.
In case the Court gets to the merits, Professor Hamburger wrote to draw my attention to his recent article “Courting censorship” in the current issue of the peer-edited Journal of Free Speech Law. I think Professor Hamburger was referring to Murthy v. Missouri when he commented: “I just hope some of the Supreme Court clerks read it!”
He introduces his article:
Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.
The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it….
The Supreme Court needs to repudiate the judicial doctrines that invite censorship. When the censorship-justifying doctrines are put aside, and the First Amendment itself is examined, it becomes clear that the Amendment leaves no room for privatized and less-than-coercive evasions of its freedom of speech. This is not, moreover, an unrealistic ideal. The First Amendment itself contains hints as to how censorship can be barred without standing in the way of lawful executive persuasion.
Whole thing here.
