Tuesday Talk*: The Line Between Suasion And Coercion

During oral argument in Murthy v. Missouri, a few of the justices whose prior experience with the government informed their perspective that the government regularly sticks its nose into the  propriety of content in order to persuade media to say, or not say, things the government prefers.

Justices Brett M. Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage are, they said, part of a valuable dialogue that is not prohibited by the First Amendment.

Justice Ketanji Brown Jackson made a similar point.

[L]ike Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech. You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again. I mean, this happens literally thousands of times a day in the federal government.

It hardly seems unreasonable that the government would have a legitimate interest in persuading social media to remove false or dangerous content, particularly in this age of foreign adversaries intentionally introducing disinformation to cause harm, and the ubiquity of random private speakers “weaponizing” misinformation to further their cause. What’s wrong with the government wanting to protect the public from harm?

If government officials are merely resorting to persuasion, however vehement, that doesn’t by itself violate the First Amendment. Indeed, such suasion is is normal behavior for public officials.

It’s that “however vehement” caveat that raises rankles. As I wrote when the Fifth Circuit held that the First Amendment prohibits government from forcing social media enterprises to remove harmful content, no matter how nicely the government asks, there is always the implied “or else” that follows from refusing the government’s request. A mob capo doesn’t have to explicitly threaten to break your legs if you refuse to do as he nicely asks, but do you want to find out whether you’ll ever walk again?

Cynics might argue that Kavanaugh and Jackson are biased by their own experience in government service. But this distinction between suasion and coercion is inherent in the text of the First Amendment. The Free Speech Clause doesn’t restrict any and all government efforts to constrain speech. Rather it, bars government actions “abridging the freedom of speech” (emphasis added). If the state—or anyone—persuades a private entity to cut back on speech voluntarily, the freedom of speech has not been abridged, even if the total amount of speech may be reduced.

All of this is true, as were the justices assertions that the government has legitimate reason to try to persuaded social media outlets to take actions it believes are in the public’s best interest. And as long as it’s merely persuasion, it does not implicate the First Amendment’s prohibition on abridging free speech.

But where is the line? How does one distinguish the government using prohibited coercion from the government using permissible suasion?

The Fifth Circuit found that there were implicit threats, although the facts relied upon have been called into dispute. Nonetheless, the rule to come out of the Supreme Court in Murthy should establish a test for the future of government takedown “requests” and not fixate only on disputed facts in the underlying case.

Unlike private parties making such requests, social media companies can ignore them at their leisure. It’s not as if they care about threats to sue and can’t handle the angry customer. The government, however, is in a very different position, empowered to impose its will or at least make life miserable for a social media company that refuses to be persuaded. Then again, social media is replete with misinformation and dangers, and the government has an undeniable interest in protecting the public from harm.

So where is the line? To say persuasion is fine but coercion isn’t is fine as far as it goes, but it provides no guidance on how to distinguish between the two. Flagrant threats are easy to recognize as coercion, but what about “nice internet you have there. It would be a shame it anything happened to it”? How does the government know how far it can go? How do the social media companies know when it’s safe to tell the government to get lost? And when the government gets involved in distinguishing truth from misinformation, should anyone accept what the government asserts to be its “truth”?

*Tuesday Talk rules apply.

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