On March 18, the Supreme Court heard oral arguments in Murthy v. Missouri and NRA v. Vullo—two cases in which government officials allegedly pressured private companies to target disfavored viewpoints. Alex Abdo of the Knight First Amendment Institute and David Greene of the Electronic Frontier Foundation join Jeffrey Rosen to break down both cases. Together they discuss the state action doctrine, explore the line between coercion and persuasion, and interrogate the tension between government speech and private speech.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Alex Abdo is the inaugural litigation director of the Knight First Amendment Institute at Columbia University. He previously worked at the ACLU where he was at the forefront of litigation relating to NSA surveillance, anonymous speech online and government transparency. Abdo filed a brief in support of neither party in Murthy v. Missouri.
David Greene is a senior staff attorney and civil liberties director at the Electronic Frontier Foundation. He’s also an adjunct professor at the University of San Francisco School of Law. Greene filed a brief in support of neither party in Murthy v. Missouri.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Murthy v. Missouri (oral argument via C-Span; transcript)
- NRA v. Vullo (oral argument via C-Span; transcript)
- Bantam Books, Inc. v. Sullivan (1963)
- Alex Abdo, Brief in Support of Neither Party, Murthy v. Missouri
- David Greene, Brief in Support of Neither Party, Murthy v. Missouri
- David Greene and Karen Gullo, "Lawmakers: Ban TikTok to Stop Election Misinformation! Same Lawmakers: Restrict How Government Addresses Election Misinformation!", EFF (March 15, 2024)
Excerpt from Interview: Alex Abdo raises concerns about government proposals to ban platforms like TikTok, emphasizing the need to protect free speech and access to information while suggesting that addressing privacy concerns through comprehensive legislation would be more effective.
Alex Abdo: Yeah, so anytime the government is proposing to ban a communications platform used by tens of millions of Americans I think it should cause people concern, and especially when the justification that many lawmakers are pointing to are the ones that David pointed out, a concern over Chinese propaganda or algorithmic ranking that they think of as problematic. Because those kinds of content concerns we think of as generally the better approach, at least domestically, is to have more speech, not less speech. And it's true that this is a foreign owned communications platform. But Americans, the tens of millions who use it have a constitutional right to access that platform. And even to hear from, if it really is Chinese propaganda, which there is as, at least as I understand it, no actual evidence to support, but supposing that it is, Americans have a right to hear that propaganda if they want to.
And there's actually a case from the Supreme Court, Lamont v. Postmaster General, which recognize the right of Americans to receive communist propaganda if they want, as against a law that required the postmaster to have Americans register for that propaganda. And the Supreme Court said, no, you can't do that because that places too high a burden on Americans' right to receive this information. So, that being said, I think there are a lot of things to be concerned about when it comes to TikTok and other platforms, including maybe most significantly privacy. And if legislators are genuinely motivated by the privacy implications of a company or a foreign government having access to all this sensitive information, I think the best first approach is to pass a comprehensive privacy bill, because it's not just TikTok that has access to this enormously sensitive information.
It's every major social media platform. And we ought to be concerned with the sheer volume of sensitive data these companies have about most people inside the country. It's also worth pointing out that it's not at all clear that banning TikTok or forcing its divestiture would address any of the privacy concerns that legislators have raised because there is an enormous amount of private data about all of us available for sale on the open market, sale by data brokers and data aggregators. And this bill would do nothing to address the availability of that data. And China could, if it wanted to just buy that data on the open market. And that makes it clear that this is not just an effort addressing privacy that falls short, but it's not even effective at accomplishing one of the main goals that some people have set out for it.
So, I think we all should be concerned about the authority the US government is potentially claiming to ban a communications platform and insist that the government come up with a very, very good justification that goes beyond the content on the site, that goes beyond that. Because anytime the government is proposing to ban speech because of its content, generally we think of that as triggering the highest form of First Amendment scrutiny. And if it's not, it's just about the content, if it's something like speech, then we should insist that the government consider other alternatives that would not eliminate this important forum for discourse while still addressing the concerns over privacy, which are, like I said, I think are legitimate ones to have.
Excerpt from Interview: David Greene discusses the ambiguity surrounding the Louisiana Solicitor General's proposed test for regulating government requests to social media companies.
David Greene: At the argument, the test that Mr. Aguiñaga, the Louisiana Solicitor General, offered, he at first offered, and I think this is where he might have gotten into some trouble. He at first offered a test that he at first offered a test that they could inform, but that any specific request would cross the line. So you could say something, for example, where we have found you can inform them that we have found information we believe to be false election information, but you could not say, and we think you should remove it. And the court really asked him questions, really seeking a limiting principle to that, seemed to be saying that if you could make the specific request, as long as it was clear that the choice remained with the social media company, whether to do it. And it was unclear what the state's position was with respect to that, he seemed to say, "Well, yes, there probably is something in the middle." But I never got the sense that either from their papers or from the argument exactly what that middle ground was. There was a point where several of the Justices, or maybe only, I think this was in an exchange with Justice Gorsuch, wondered whether the subject matter should be a factor in the test, whether there was some type of public interest component that should be considered in the test.
That is if the subject matter was something that was important for the government to be heard on, then that would factor into whether or not it was a constitutional communication. I believe that was only Justice Gorsuch who picked up on that. I'd actually be a bit concerned about that, I do think it would prioritize things like national security. And again, I actually think it would end up prioritizing national security, almost to the exclusion of anything else in such communications. So that was the test that Louisiana offered, and it's really, it was very difficult for me to understand what they were saying. If the court was not going to accept the you couldn't make any request at all, what they're going to be saying. On the other hand, you had the Solicitor General's initial test was we can do anything but directly threaten a penalty for noncompliance. And similarly, the court seemed to want to draw the line in a way that would include more speech as being improper. And similarly, I didn't hear Mr. Fletcher actually offer something that seemed appealing either. One of the things I think will be interesting to watch is to what extent collaboration and coordination will factor in the court's opinion.
I thought if there was one part of the argument that seemed like the government might be in trouble, it might be in the series of communications where regarding COVID vaccine, rollouts and vaccine hesitancy, there was an email exchange in which the government referred to, and I believe this was Facebook as being partners, and that they were on the same team on this one. And that seemed to be causing several of the Justices some concern that there would be some level of collaboration and coordination that, again, might cross the line. Now, whether that's considered under coercion or considered under a separate state action doctrine of joint action, I think is less clear.
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