Congress Needs to Crack Down on the Government’s Social-Media Censorship

I n the case of Murthy v. Missouri, the United States Supreme Court today struck a blow for the principle that . . . “neither the individual nor the state plaintiffs have established standing to seek an injunction.”

Ah well.

At issue in Murthy was whether the executive branch of the federal government is permitted to pressure private social-media companies “to censor their speech in violation of the First Amendment.” Last year, the Fifth Circuit found that “Government entities and officials, by ‘coerc[ing]’ or ‘significantly encourag[ing]’ the platforms’ moderation decisions, transformed those decisions into state action.” Today, the Supreme Court reversed and remanded that decision — not because it disagreed with it per se, but because six of the nine justices determined that they did not have the “jurisdiction to reach the merits of the dispute.” “Because we do not reach the merits,” they wrote, “we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.”

And that, alas, was that.

I do not know if the Court’s majority is correct on the standing issue, but, at this stage, that does not matter. The justices have promulgated their ruling, and, in doing so, they have upheld the status quo. What matters now is what Americans are going to do to prevent a repeat of the disgraceful executive-branch conduct that is outlined at length in the dissent. Objecting to the majority’s verdict, Justice Alito suggested persuasively that, “if the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years.” At stake, Alito proposed, was nothing less than “freedom of speech” — a liberty that “is essential to democratic self-government” and to the advancement of “humanity’s store of knowledge, thought, and expression in fields such as science, medicine, history, the social sciences, philosophy, and the arts.” On the merits, Alito concluded, the government’s behavior was “blatantly unconstitutional,” and, because it was not checked by the judiciary, “officials who read today’s decision” now know how to get away with it in the future. “If a coercive campaign is carried out with enough sophistication,” Alito predicted darkly, “it may get by. That is not a message this Court should send.”

I agree with Alito’s assessment of the problem. I would add, however, that if Americans do not want that message to be sent, then they ought to demand that Congress step in and interdict it.

That the courts balked on this one is, indeed, regrettable. But the courts are not the only guardian of our constitutional order, and, far from creating a permanent vacuum, their reticence in this case has created a great deal of space for the other branches to fill. Distressingly, we know how the Biden administration is likely to fill that space. If it wishes to avoid disaster, Congress must match the White House’s enthusiasm.

Were I in Congress, this is how I would proceed. First, I would assume that the Supreme Court would have upheld the Fifth Circuit’s findings on the merits were it not for the plaintiffs’ standing problem, and thereby infer that it is, in fact, unconstitutional for the executive branch to put undue pressure on social-media companies to moderate their users’ speech in ways that comport with the president’s aims. Only last month, in National Rifle Association of America v. Vullo, the Court reiterated that placing indirect pressure on private actors in order to punish a third party’s speech remains unconstitutional. Because that decision adumbrated no exemption for social-media companies, it is likely that the only question that remains is exactly which forms of verbal or written pressure amount to forbidden coercion. That is an important question, but not one that should dissuade Congress from presuming it is empowered to act.

Next, I would require that the executive branch establish a single office that it must use when communicating with social-media companies about their content, and, having thus narrowed the legitimate loci of action, I’d require both the executive branch and the social-media companies to disclose all communications between them and that office. (It might be necessary here to include a narrow, time-limited exemption for law-enforcement agencies that are dealing with sensitive cases, but that would have to be drafted tightly.) In addition, I would make it illegal for the executive branch to pay any federal employee who had been caught contacting a social-media company outside of the ambit of the single office; I would make it illegal to pay any federal employee who had been caught unconstitutionally pressuring a social-media company to brings its content in line with the preferences of the government; and, on the other end of the transaction, I would use Congress’s remedial powers to create a federal right of action for any end-user whose First Amendment rights had been interfered with by the executive branch — without requiring proof that the government’s attempted suppression of speech was successful. (This lattermost caveat would solve the problems of proof that thwarted Murthy v. Missouri.)

Such a law would, of course, raise some legal questions. Among these would be to what extent, within our system of separated powers, the legislature is allowed to micromanage the speech of the executive. (A number of such laws already exist. It is illegal, for example, for the IRS to disclose a citizen’s tax returns.) But, if my underlying assumptions about the constitutional illegality of that speech were correct, these objections would be easily overcome. The executive branch has a whole host of powers that cannot be foreclosed or superintended by Congress, but, quite obviously, it does not have the power to violate the First Amendment. “Article I can’t tell Article II what to say” is one argument; “Article I can’t defend the Bill of Rights against Article II’s attempts to infringe it” is quite another. Perhaps, at the margins, the inevitable litigation would trim back any statute that intended to give that principle some teeth, but it would be unlikely to nix such a statute completely.

And if the Supreme Court did not, in fact, agree with the Fifth Circuit’s substantive analysis? Well, then nothing would be lost. At worst, the exercise would bring the matter before the judiciary once again — this time to yield a transparent decision on the merits. At best, the Court would be prompted to engage in its own line-drawing exercise, and thereby to answer the questions that the Murthy decision ignored. Above all, it would serve as a healthy reminder that, while important, the Supreme Court is not supposed to be at the center of the federal apparatus and that, when it demurs, there are other options available to the people. That, to paraphrase Justice Alito, is a message Congress should send.