Our curation on RealClear Censorship this week was largely devoted to Murthy v. Missouri, the landmark First Amendment case argued before the Supreme Court on March 18. If you’ve followed our page in the last few months, you’re aware of how anticipated this case has been, at least among those of us concerned with the federal government’s recent encroachments on the free speech of several prominent dissenting voices. The initial suit, filed by then-Missouri Attorney General Eric Schmitt, alleged that the White House and other federal agencies were “working with social media giants such as Meta, Twitter, and YouTube to censor and suppress free speech, including truthful information, related to COVID-19, election integrity, and other topics, under the guise of combating ‘misinformation.” Thousands of specific, arguably unlawful interactions between government officials and tech companies have been unearthed in the last two years, most notably in Matt Taibbi’s Twitter Files.
This suit, filed in May 2022, was called Missouri v. Biden, and represented numerous plaintiffs—including Dr. Jay Bhattacharya, recipient of RealClear’s inaugural Samizdat Prize earlier this month—all of whom were banned, shadow-banned, flagged or suspended by a “social media giant,” often immediately after the government had identified their accounts by name in emails to company executives. When the Fifth Circuit Court of Appeals issued a preliminary injunction in the case, limiting communication between certain federal agencies and personnel and their corporate counterparts, the government appealed, after which the injunction was narrowed but generally upheld. The government’s formal challenge to the injunction is called Murthy v. Missouri (SCOTUS nomenclature puts the plaintiff’s name first, hence the transposition) and now seems likely to succeed.
Most Justices were skeptical of the respondents’ (Missouri) argument that the government’s communications constituted a violation of the First Amendment, and were far more comfortable with plaintiffs’ claim that the behavior amounted to mere jawboning—a tough but permissible style of persuasion that empowers government actors to shape public discourse on highly sensitive or urgent topics.
For those looking for a straightforward summary of the hearing, we recommend The Federalist Society’s write-up, which provides annotated recapitulations of each Justice’s line of questioning. You can also read the full transcript on the Supreme Court’s website. For analysis of the legal argumentation, we recommend two pieces from Reason Magazine. The first is Eugene Volokh’s analysis, which takes a narrow and clarifying look at the distinction between action and persuasion in the case of speech abridgment. Volokh fairly assesses the court’s apparent view and then sketches a potential argument against it. Philip Hamburger, CEO of the NCLA, is engaged in an ongoing debate with Ilya Somin over the coercion/persuasion threshold in the case; we recommend his “Abridging, not coercing, is the First Amendment’s yardstick for speech violations” blog post for clarity on what has become the central technical dispute in the case (of course, those interested should also read Ilya Somin’s rebuttals to Hamburger, published in Reason as well). We won’t have a ruling for a few weeks, and nothing is certain, but the court’s emphasis on coercion as a standard for First Amendment violation sets a high, potentially misguided bar that the defense in Murthy might not meet. This would discard the Fifth Circuit’s injunction and functionally defeat the allegations of censorship levied at the federal government.
This week saw several great reports and essays on topics other than Murthy, including Ross Barkan’s “Bring Back the Culture of Debate!” for Persuasion, which places Tricia Romano’s oral history of The Village Voice alongside the stifled culture of present-day newsrooms. While not about censorship per se, the piece mourns the Voice’s combative, heterodox style for its ability to print competing views in its pages without succumbing to the homogeneity that now plagues many of our esteemed papers. “So many journals and publications,” Barkan writes, “sound alike—their politics indistinguishable, the writers circulating between them interchangeable.” This intra-institutional attitude towards dissent functions as self-censorship de-rigeur, as was seen in the collapse of Guernica last month after the publication of an essay that many of the magazine’s editors disliked. “Standpoint epistemology dominates everywhere.”
Lee Fang published a report this week in collaboration with RealClearInvestigations, this time on the U.S. Government’s abetting of a crop of media outlets that unjustly malign prominent critics of Western support for Ukraine in its ongoing war with Russia. Fang details numerous outlets—VoxUkraine, the New Voice of Ukraine, Detector Media, the Institute of Mass Information, and the Public Broadcasting Company of Ukraine—all of which receive U.S. taxpayer dollars as part of Congress’ $44.1 billion civilian-needs foreign aid commitment to the conflict. Glenn Greenwald, Tucker Carlson, Jeffrey Sachs and John Mearsheimer are among the prominent American voices regularly smeared as “Russian propagandists” by the growing constellation of state-funded, pro-Ukraine networks. Western commentators are often vilified for taking what is known as a “realist” position on the war, arguing that the U.S. Government is only protracting a futile conflict abroad that holds little domestic interest.
Finally, we recommend two excellent video conversations on censorship and free expression this week. Greg Lukianoff of FIRE sat down with legendary comedic actor, and longtime advocate for free expression, John Cleese, for a conversation about cancel culture, comedy and the intellectual necessity of free speech. Additionally, Glenn Loury spoke with Michael Shellenberger this week on The Glenn Show about the Censorship Industrial Complex—Shellenberger’s coinage—and the myriad, global threats to free speech on the internet that threaten us today. Loury is a renowned professor of Economics at Brown University and Shellenberger, as editor-in-chief of Public, is one of the most vocal opponents of governmental censorship currently at work. We encourage you to listen to their conversation, and to follow Loury’s independent podcast and Shellenberger’s investigative outlet.
