What is an infringement of speech?

The Supreme Court has two cases before it this term that pose the important question of whether government officials violate the First Amendment by engaging in their own speech. The Court has rarely addressed this, but in the world of social media it has become increasingly significant.

Murtha v. Missouri involves a suit against the Biden administration claiming that it violated the First Amendment by pressuring social media sites to take down false speech.

Louisiana and Missouri, along with a conservative website owner and four people who opposed the administration’s COVID-19 policy, sued and claimed that the pressure from the federal government to remove false speech from platforms violated the First Amendment.

A conservative federal district court judge in Louisiana ruled in favor of the plaintiffs and issued a broad injunction against the White House and many federal agencies. The United States Court of Appeals for the Fifth Circuit left much of the injunction in place and said that the federal government coerced and encouraged platforms to remove false speech in violation of the First Amendment. But it did end the injunction against some of the defendants, including the National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Agency and the State Department.

National Rifle Association v. Vullo raises a similar question of when the speech of government officials constitutes coercion that violates the First Amendment. After the Parkland, Florida shooting in 2018, Maria Vullo, then the head of New York’s Department of Financial Services, urged banks and insurance companies to not do business with gun rights groups like the National Rifle Association. The National Rifle Association sued Vullo saying that her pressure on businesses to cut ties violated the First Amendment.

The District Court denied Vullo’s motion to dismiss for failure to state a claim and on the grounds of qualified immunity. The United States Court of Appeals for the Second Circuit reversed, concluding that Vullo did not violate the First Amendment and even if she had done so, she was protected by qualified immunity.

Thus, the issue in both cases is whether speech by government officials is an infringement of speech. This is an issue that rarely has been considered by the Supreme Court.

The leading case, relied on by both the Fifth and the Second Circuit, is Bantam Books, Inc. v. Sullivan (1963). The Court held that it was unconstitutional for the Rhode Island Commission to Encourage Morality in Youth to identify “objectionable” books because they were unsuitable for children and to write to sellers urging them to stop selling those books. The letter also informed the recipient that the commission recommended obscenity prosecutions to prosecutors and turned its list of distributors of objectionable books over to local police. In fact, a police officer often followed up and visited the recipient of a letter to see what actions had been taken. The Supreme Court found that such pressure constituted an unconstitutional prior restraint of speech, even though no books were actually banned and no prosecutions were undertaken.

But in other cases, the Supreme Court has found that speech by government officials is not an infringement of speech. In Meese v. Keene (1987), the Court held that the government could label a film without violating the First Amendment. Pursuant to the Foreign Agents Registration Act, the federal government identified some Canadian films as political propaganda. One, titled “If You Love This Planet,” had won the Academy Award for Best Short Documentary in 1982 and depicted an antinuclear weapons speech given by the president of the American group Physicians for Social Responsibility. A second film, titled “Acid Rain: Requiem or Recovery?,” also produced by the National Film Board of Canada, focused on the harms from acid rain.

By labeling the films as “propaganda” under the Foreign Agents Registration Act, the exhibitors of the movies were required to place the words “political propaganda” at the beginning of the films. Additionally, the producer of the films, the National Film Board of Canada, was required to provide the government with a list of all major distributors of the films and with a list of all of the groups that had requested the films for viewing. Nonetheless, the Court found no violation of the First Amendment.

The conclusion I draw from these cases is that speech by government officials infringes the First Amendment if it rises to “coercion.” In Bantam Books, there was an explicit threat of prosecution and visits by a police officer to the bookstores.

But nothing like that occurred in the cases before the Supreme Court. In Murtha v. Missouri, the Fifth Circuit said, “The officials threatened — both expressly and implicitly — to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply.” However, telling someone that the failure to act could lead to new laws and regulations is not coercion. Never did the government warn the social media companies that they were violating the law and would face punishment if they did not accede to the requests to remove content.

Likewise in National Rifle Association v. Vullo never was it alleged that she, or anyone, threatened prosecution. She encouraged banks and insurance companies to refrain from doing business with the NRA and said that future regulations could be forthcoming. It is hard to see any of this as coercion.

The Supreme Court should be very reluctant to find a violation of the First Amendment in either of these cases. Government officials, too, have the right to free speech. They should be able to express their view that false speech should be removed from websites or that companies should not do business with the NRA.

I – and school administrators at all levels – are constantly encouraging students to speak responsibly and with civility. We cannot impose punishment on students who fail to abide by our hopes. But it would be wrong to see our speech as an infringement of speech. Students have the right to speak and express their views, but so do I. If the Court finds an infringement in these cases, I worry that it will chill government officials from speaking out when there is offensive or false or harmful speech, albeit expression that is protected by the First Amendment.

The Court should unequivocally hold that it takes more than this to infringe the First Amendment. Speech by government officials is not an infringement unless there is coercion and none occurred in these cases.