The Supreme Court’s decision in Murthy v. Missouri disappointed many Americans concerned about federal bureaucrats secretly coercing social media companies to censor free speech online.
A 6-3 court held that the challengers lacked standing to bring their First Amendment claims because they had not shown a direct link between the government’s pressure and the platforms’ actions. But the decision should refocus attention on one solution for this and other bureaucratic overreach: We must reform the administrative state.
During the COVID-19 pandemic, social media users saw mounting evidence that platforms were removing or reducing the reach of posts that questioned the government’s claims. Even college professors and authors had their accounts blocked over actions as simple as sharing a Wall Street Journal article on Twitter. What we didn’t know at the time was that government bureaucrats were evidently pulling the strings, bullying the platforms to censor Americans’ speech.
The discovery in Murthy v. Missouri, showed that numerous officials in the Biden administration, across an array of federal agencies, were engaged in a coordinated pressure campaign, urging social media platforms to flag, demote or remove posts that the administration considered “misinformation,” about topics like COVID-19 and vaccines.
Much of this pressure campaign was secretive, more bully than pulpit.
Social media platforms are private businesses. The First Amendment restrains government and protects private citizens and organizations. But the allegations — and the evidence — in the Murthy case are that federal officials were violating those protections, just doing it indirectly. Much of what appeared to be social media platforms independently “deciding” to remove COVID-related content was really the government coercing and pressuring Facebook, Twitter and other platforms to do what the First Amendment forbids the government from doing directly. This is what my colleague Cindy Crawford calls “censorship by stealth.”
Of course, none of these federal bureaucrats were actually tasked by Congress with the job of policing online speech. Congress has, no doubt to the chagrin of some, never passed a law empowering any agency to pressure social media companies to censor speech. But the evidence in Murthy is that dozens of executive branch employees nevertheless felt empowered to interfere with private citizens speaking to one another on private companies’ platforms.
The First Amendment is perhaps the most important guarantee to America’s experiment in self-governance. All of its five freedoms (speech, religion, press, assembly, and petition) ensure that the people, not the government, retain authority over their own mind, conscience, and will and can hold our elected representatives accountable.
But the First Amendment isn’t the first or even the most important line of defense for those freedoms.
Indeed, it is an amendment, added to our Constitution after its ratification. This is not because our Founders didn’t appreciate the importance of freedom of speech, press and religion, but because they believed the best protection for our civil liberties lay amid the checks, balances, and limits to government power in the Constitution’s original four pages.
As former Supreme Court Justice Antonin Scalia once reminded Congress, “The foundation of our freedom is not based in the Bill of Rights. That was an afterthought. Every tinpot dictator has a Bill of Rights which he casually ignores. What was debated in 1787 and what ensures our freedom is our structure of government, which holds each branch (and in turn by its people) to account. Have no illusions. Structure dictates destiny.”
What should our constitutional structure mean for online government censorship? The Constitution only gives Congress the power to legislate. As the government body most accountable to the people, it makes the laws. Thousands of unelected Washington bureaucrats in administrative agencies don’t have the authority to impose “law” through pressure campaigns to police Americans’ speech on social media.
Murthy was certainly a case about Americans’ First Amendment rights. But before that, it was and remains a case about the out-of-control unelected, unaccountable bureaucrats wielding power the Constitution, Congress and we the people never gave them, trampling Americans’ free speech rights in the process.
The court passed on the opportunity to order the bureaucrats to comply with the First Amendment. But both the court and Congress can still protect not only our First Amendment rights, but all our other freedoms by reining in the power of unelected bureaucrats to use the coercive power of government against the people it is supposed to serve. It’s for the court and Congress to rein in the bureaucrats.
Return the responsibility where it belongs — to federal lawmakers, as well as to the state and local elected officials closer to the people. And then when they get it wrong and seek to censor our speech, the American people can hold them accountable at the ballot box.
The lesson of Murthy v. Missouri and the Supreme Court’s decision is not that First Amendment rights are not threatened by government coercion of social media platforms. They are. But the solution is larger than free speech rights, as much as it pains me to say it as a First Amendment attorney. Censorship is only the symptom. The root cause is government overreach. The real solution to a problem as large as a censorial pressure campaign by the federal bureaucracy is to rein in the power of the federal bureaucrats.
Casey Mattox is vice president of legal strategy at Stand Together.
