The government, of course, does not have the right to punish someone criminally for the vast majority of speech. But does it have the right to persuade?Jackson may think it does. Her "hamstringing" comment came attached to a hypothetical scenario she posed to Benjamin Aguiñaga, Louisiana's solicitor general, who argued the Biden administration had overstepped when it contacted social media platforms and attempted to pressure them to remove posts it found objectionable. Suppose a challenge circulated on social media concerning "teens jumping out of windows at increasing elevations," Jackson said. Could the government try to persuade those platforms to remove that content?No, Aguiñaga said, because that's still protected speech, no matter how dangerous.That might very well be the correct interpretation. But Jackson's take—that such a view could place too much restraint on the government—is one that's held by many, including, it appears, some of her more conservative colleagues. Kavanaugh, for example, invoked his experience working with government press staff, who regularly call reporters to criticize them and try to influence their coverage.
The cases are different: Kavanaugh is talking about the government attempting to persuade reporters to alter their own speech. This is a case about trying to use government "persuasion" to get outlets to ban other people's speech. It's really an attempt to use the publisher to silence opinions the government doesn't like, i.e., to censor by proxy.
I don't think the government should have the power to do by proxy what it is forbidden from doing by itself. However, the SCOTUS has long accepted massive 4th Amendment invasions by a similar argument: that the government can dodge its ordinary duty to obtain a warrant before spying on your communications simply by going to your ISP or cell phone provider and asking them to provide your content out of their free will.
Trying to get the government to actually respect its constitutional limits in those cases has so far proven impossible; I suspect the SCOTUS will find that the government can violate the first amendment, too, so long as it does it by proxy.
4 comments:
I've seen several motte-and-bailey arguments that try to use Jackson's hypothetical to claim a 1st Amendment carve out could be created that would be fine because it would only be used in really obvious cases. To me that raises the question about why government coercion would be required for cases where social media companies would be under intense pressure anyway.
Jackson's take—that such a view could place too much restraint on the government
Say that's true. Making the appropriate correction to supply the defect nevertheless remains beyond American courts at all levels. Adjustments to our laws or clauses of our Constitution, or filling in gaps in either, remains the sole province of the political branches of our government and of We the People who elect them, and wrt our Constitution, remains the sole province of We the People, as Art V specifies and requires.
Jackson is wrong to push such adjustments as a legitimate move for the Supreme Court.
Eric Hines
Trying to influence the behavior of a *platform* to control speech that flows through it is quite different from trying to influence the speech of an *individual* (including a corporate individual) Analogy: instead of trying to get a newspaper to write favorable coverage, it is like trying to get a newsprint manufacturer to deny its product to those newspaper whose speech the government considers undesirable.
I have no problem with attempts to persuade people to limit their own speech, for the good of the public, according to whatever arguments they think may hold water.
It's completely different matter to persuade (or frankly coerce) people to censor the speech of others.
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