Free Speech, Government Persuasion, and Government Coercion 

>> Eugene Volokh: Welcome to Free Speech Unmuted. I'm Eugene Volokh, I'm a professor at UCLA Law School and a senior fellow at the Hoover Institution at Stanford.

>> Jane Bambauer: And I'm Jane Bambauer, I'm professor of law and also the Brechner Eminent Scholar at the Department of Journalism at the University of Florida.

And today we are discussing the Murphy versus Missouri case that was just argued before the Supreme Court. It starts with an injunction that was, well, left in place by the Fifth Circuit that enjoins the Biden administration from, and I'm quoting here, threatening, pressuring, or coercing social media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.

So the background context is that during the pandemic and also the 2020 election, many of the major social media companies were routinely in contact with the federal government to get advice. But also to receive, I guess, communications that certainly seemed pressuring and maybe even went across the line into threatening.

Some of the things that happened. So, first of all, every major social media company had regular contact with the federal government where they would receive recommendations for which types of misinformation ought to be removed or downgraded or that sort of thing. They had regular meetings, but some of them also had special partner support portals where the government's recommendations for content moderation would be prioritized automatically.

But then maybe more concerning, there were thousands of emails that were disclosed during discovery in this case where White House staff were asking, why is this post still up? Or I don't think their position is that it needs to be removed, but slowing it down seems reasonable, these are quotes.

And then also, there were both private and public statements that may have worked together to create some pressure or even vague threats. Quotes like, you're hiding the ball, that we feel that Facebook was not trying to solve the problem. The White House is internally considering our options for what to do about it.

And then during public press statements, the press secretary said, well, President Biden himself said that these social media companies were killing people. And then a few days later, the press secretary said that the White House was reviewing what to do about the legal liability of the platforms. And considering things like section 230, changing section 230, the statute that currently gives immunity to these platforms against tort liability, and maybe even enacting antitrust reforms.

So, Eugene, do you wanna add anything to the factual context? I bet we'll pull out more facts, too, as we discuss the case. But is there anything upfront we should know before we talk about what the Supreme Court has said before?

>> Eugene Volokh: Well, this has to do with the legal framing of the facts.

The important thing is that this case is at least two major issues which are related but different. One of them has to do with whether the government was impermissibly coercing the platforms, impermissibly pressuring the platforms to remove speech. And I think it's pretty broadly agreed that if it were coercing them, that would violate the First Amendment.

But there's a big dispute about whether there was such coercion. The separate question is whether, even apart from coercion, the fact that the government was encouraging them or requesting them to remove certain material or downgrade it or whatever else, whether that is also a First Amendment violation. And there, factually, it does seem pretty clear the government was making some such requests.

But it's not at all clear whether that is, in fact, unconstitutional. So it may be worth keeping the two items separate, because while they arise out of the same facts, they really are very different legal theories.

>> Jane Bambauer: Well, even the way the injunction was phrased, threatening, pressuring, or coercing.

I think most people would agree that threatening and coercing, those kind of work hand in hand in terms of laying into a distributor of speech in a manner that suggests that if they don't do it, something bad is going to happen. Pressuring is more vague, and I guess that's sort of what we're going to be getting into the weeds on.

 

>> Eugene Volokh: Well, if I could take a slightly different view, I think that the pressuring is kind of close to coercion, at least in this kind of context. But there is very much a live question before the court whether even in the absence of pressure, if it's merely requests, if it's merely encouragement, even if it is pretty far removed from coercion, whether that itself is unconstitutional.

That raises some of the most interesting legal issues, as opposed to just factual disputes over whether there was or was not enough pressure.

>> Jane Bambauer: Yeah, okay, so what has the Supreme Court said before?

>> Eugene Volokh: Well, back in 1963, there was a case called Bantam Books v Sullivan, which basically held that when the government tries to exert coercive pressure in order to block speech, that itself can be a First Amendment violation.

In that context, there was a specialized Rhode Island government agency that was fighting obscenity. At the time, obscenity wasn't just today's super hardcore porn. Back then, it included a lot of material that would be pretty tame by today's standards. So this commission, instead of getting an injunction, let's say, against the distribution of certain books or prosecuting people.

Instead of that, it just went to the bookstores and said, we think this material that you're selling is obscene, and we're hoping you just take it down or else we might have to call in the big boys, call in the prosecutors, call in the police and the like.

And the court said, that may not actually be a prosecution itself, it may just be a threat, but that is certainly enough to make for a First Amendment violation. So that's the law about coercion. And the real question in a lot of these cases is, is there or is there not enough evidence that there's actually coercion going on there?

I should say there was a case argued the same day, rising out of very different facts called NRA v Vullo. I was the counsel of record. I didn't argue the case, but I was one of the lawyers on the briefs, which involves just the coercion side. I'm not gonna talk about that case because I was a lawyer for it.

But this issue does come up. It came up in that case, came up in Murphy. Now, the other side, the encouragement question, that's not at all clear. There have been times when the Supreme Court has said, well, if the government substantially encourages private action, then it's in a sense responsible for that action.

I'll give you an example. The Supreme Court hasn't said this as to the Fourth Amendment, but some lower courts have said that if the police call someone up and say, you're a private person, we're not trying to force you to do anything. If you say, no, no problem.

But we're hoping you might search through somebody else's property. Like, maybe you're a landlord and you're entitled to go in and look around in your tenant's apartment. But why don't you do that and report back to us? That kind of substantial encouragement would be viewed as enough to make that search into a government search governed by Fourth Amendment principles.

Likewise, there was a case called Norwood v Harrison, which involved actually substantial government support for the segregationist academies that grew up in the south as part of its attempt to fight racial integration in the schools. And the court there said, well, if when the government provides that support, that substantially encourages the segregationist academies and thus makes them subject to the equal protection clause.

But what about in the First Amendment context, can the government just sort of urge people to not say things or to not allow other people to say things on their platforms? Let's say, not urge a newspaper not to run an op ed in its pages? That's something that there really isn't a lot of press it about.

As we'll see, there's some pretty strong suspicion that the government, at least, is very often allowed to do that. But there's no clear precedent on the subject the way there is with bantam books on coercion.

>> Jane Bambauer: Okay, yeah, so, yeah, so I agree. When it comes to the First Amendment, it's likely to be, or at least it could very well be a different level of encouragement or pressure that before the state action doctrine kicks in or before.

Yeah but I do think that one reason this case is so hard is that bantam books itself left rule language that was a bit vague. It could have been a rule that honed a little closer to the facts there. But the court said instead that the threat of invoking legal sanctions and other means of, and other means of coercion, persuasion and intimidation would count.

And it's that word persuasion, just leaves a lot of questions. Because I think we can all agree the government needs to be able to persuade some people to do some things without having to directly use public law to order everyone to do things. Okay, so the Fifth Circuits test, I kind of I wish it were just I don't necessarily agree with the application to the facts here.

But what the Fifth Circuit said, or at least this is my reading, is they are going to use coercion as a line, but also or significant encouragement. And the way that they define significant encouragement is maybe a little bit differently from the sort of encouragement that Eugene was just talking about with the Fourth Amendment.

They say significant encouragement must. There has to be a close nexus between the parties that the government is so that the government is practically responsible for the decision right? And then as they apply that test to the facts, to me, I think what they're trying to do is they're trying to say there are two ways that private act, what would otherwise be a private decision, could become the state's responsibility.

One way is through pressuring of the sort that reaches that coercion line. And I think even that we're gonna have a lot to say about that and we may disagree. But there's another way. This other way is that even if the, even if the private decision maker totally voluntarily hands over the reins to the government, so that the government is making these basically micromanaged decisions, that would be enough.

Outsourcing that kind of judgment to the government could itself also be a First Amendment violation, could implicate the First Amendment for reasons that theoretically may be distinct from the coercion point. So, first of all, Eugene, do you disagree with that interpretation of what the Fifth Circuit was trying to do?

I can give you some examples of why I think this is what they were trying to do, but let me first see it.

>> Eugene Volokh: So the fifth Circuit in this case was trying to come up with a line between, on the one hand, the government can talk, so long as it's non coercively to people all the time.

And urge them to remove things and work hand in hand with them to remove things. And that's all perfectly fine, no matter how systemic, no matter how organized that is, so long as there's no coercion. So they wanted.

>> Jane Bambauer: You think that's what the Fritz circuit was saying?

 

>> Eugene Volokh: No, they didn't want to go that far.

>> Jane Bambauer: Okay.

>> Eugene Volokh: Likewise didn't wanna go too far on the other side, where every time the government pulls up a newspaper and says I think what you are about to publish is just false. And wouldn't it be better for everybody if you didn't that would be somehow unconstitutional?

So the Fifth Circuit didn't want that. So they were trying to come up with some line in between. I think what they were focusing on is whether it's really kind of a persistent, systemic working hand in glove with a private entity, in which case you might think of it as this entanglement.

As this joint action by government program of joint action versus just occasional somebody calls somebody up. The question whether that kind of line makes sense, because it would require, among other things, a lot of judgment calls about how systemic is systemic. There's one of my favorite lines from a song, is from Suzanne Vega's song of the line, is.

It's a one time thing it just happens a lot.

>> Jane Bambauer: Yeah well, they do.

>> Eugene Volokh: So it's hard to know if the fifth Circuit figured out, but that's what I think the fifth Circuit was trying to do.

>> Jane Bambauer: I agree and I just, I just want to clarify.

I wish that they explained that this test is not a single way that the government may implicate the first amendment here. It's actually two different paths. I mean, they might go hand in hand, but you can coerce or you can work so closely that you're basically in a, in a case of joint decision making.

 

>> Eugene Volokh: In cahoots.

>> Jane Bambauer: In cahoots, yeah and they did contrast they said that there was this, the California secretary of state had this system where they were flagging a whole bunch of election misinformation. And every single time they did it, the social media companies took it down. But that was purely optional and it was a purely optional suggestion.

Yes, it happened a lot, but it wasn't the social media companies, I guess, formally handed over decision making. I'm not sure what we would have had to see, but the First Circuit said that was not a problem. So you're right that they're trying to find a middle way.

Okay, so then I think we should talk about how the parties crafted their arguments here. Do you wanna take us through what the Biden administration's argument was?

>> Eugene Volokh: Only if I get the take us through this at a very oversimplified level, because it was a long, long argument.

Both sides argument was a long argument. Basically first of all, they said some things about some procedural questions related to standing related, where there's enough proof that these particular plaintiffs were affected here. Tremendously important legal question. I'm gonna take the liberty of just bracketing it here because while important in this case, I don't think it's not central to the free speech issues as such and to the broader legal principles involved here.

But the government's view was basically this. We didn't coerce the conclusions of the lower courts that there was coercion, just not justified. We were just urging, we were just requesting, not coercing. And among other things, these Platforms they're not just like some small mom and pop bookshop who might be overawed by the power of the federal government.

They're very powerful entities on their own. So we weren't coercing. And when it comes to encouragement, we may have been encouraging, we may have been trying to persuade, but that's perfectly fine. We are entitled to speak too. Maybe it's not clear that the federal government, as such, has free speech rights as such under the First Amendment.

But at the very least, it's a legitimate thing for the government to talk to people and try to persuade them, including, try to persuade them not to say things or not to join particular groups or not to allow certain speech on their private property. That was the heart of the argument that the solicitor general's office, representing the federal government, was making.

 

>> Jane Bambauer: Okay, let's listen to a couple examples of that. First, we're getting to listen to the solicitor general respond to some questions from Justice Gorsuch.

>> Mr. Fletcher: I think there can, I think, you're often a threat or an inducement to sort of the flip side, one or the other.

I think in the next case, you could construe it either way, threat of prosecution, offer of leniency. So we acknowledge that it can be both, but it has to be a threat or an inducement of some concrete government action, not just a more government speech.

>> Justice Neil Gorsuch: And hypothetically, and I'm not saying this happened here, but would a threat or an inducement with respect to any trust actions qualify as coercion?

And a threat or an inducement with respect to section 230 qualify?

>> Mr. Fletcher: So I think that one's harder for two reasons. One is that these are executive branch officials who don't have the ability to unilaterally enact 230 reform.

>> Justice Neil Gorsuch: But they have a power to influence that.

>> Mr. Fletcher: Influence that but the question is.

 

>> Justice Neil Gorsuch: Would that be enough to say, if you don't do acts, we are going to change our position on section 230?

>> Mr. Fletcher: So, potentially, yes. As to legislation 230, if I could just get this out, though, I think is different, because 230 is about content moderation. It's about this very issue, and I think a government official has to be able to say, I support section 230 reform because I'm concerned about these things.

And also, in the meantime, I think platforms should be doing better.

>> Justice Neil Gorsuch: I understand that. But in terms of advocating for change of section 230, that could be coercion, in your view.

>> Jane Bambauer: Okay, so it seemed that the solicitor general conceded that if there were a threat, do this.

Otherwise, we will consider antitrust enforcement or something that that would be enough for coercion. What did you make of the section 230 response?

>> Eugene Volokh: So when you're talking about coercion, there are often questions about what counts as coercive enough. On one hand, anytime somebody who's powerful enough says something to someone, there may be some coercive subtext.

On the other hand, even powerful people and entities need to be able to speak. Just an analogy that comes to my mind is when it comes to employer speech to employees about unionization, employers are allowed to tell their employees, we think it's a bad idea for you to vote for a union for the following reasons.

But at the same time, the Supreme Court has made clear that the courts ought to police things a little bit more closely when it's the employer talking to employees rather than just a politician talking to the voters. Because the employees realize that they could get fired by the employer and as a result, might notice subtle threats in situations where absent that kind of power over them, this wouldn't be seen as threatening.

So that's one dimension of what counts as a threat. The other is a threat of what, let's say the president says, we're gonna need to have new laws that regulate you if you don't regulate yourselves. It's actually not uncommon thing that government officials have said. I think it was said at one point about violent video games, about various other things.

The president can't pass a new law. So in a sense of the statement is less likely to be seen as threatening, maybe more a warning that, well, you got to understand what the political dynamic is like more broadly. At the same time, the president is, as a practical matter, in our system, the head of his party.

And especially when his party is in power, a statement that says, a new law might be passed is something that could be seen as, I will talk to the people I work very closely with in Congress to make sure that the new law is passed.

>> Jane Bambauer: So even if the threatened new law might run afoul of the First Amendment, I think I agree with you that even in that case, it's like, good luck trying to pass that law, and then good luck enforcing it.

 

>> Eugene Volokh: Just to be clear, though, the section 230 reform may very well not.

>> Jane Bambauer: I agree, I agree, I agree.

>> Eugene Volokh: The question is whether the threat, I mean, a lot of threats in this kind of situation might be the threat to do something that you're legally entitled to do.

But it's aimed at suppressing speech. That may very well be an impermissible speech restriction.

>> Jane Bambauer: Okay, I think we agree on that. But threatening something like antitrust, I'm wondering if you think that that is equivalent to threatening something like firing you for trying to unionize where the action doesn't have direct relevance.

The sort of punishment doesn't have direct relevance to the statement, the speech that the government was trying to suppress.

>> Eugene Volokh: Well, I think just to give an example, and it's only a structural analogy. I'm not saying it's morally equivalent, but it reminds us of how broadly threats could operate.

If I say, pay me some money or I will burn down your restaurant. The threat of burning something down is not logically connected to the payment of the money, but it's still a powerful threat because it's of harmful retaliation. So likewise, a threat that we're going to enforce some other law against you if you don't.

 

>> Jane Bambauer: Yeah, I'm saying it's war. I think that's more of a threat, right? I would see that as more coercive precisely because it's not relevant.

>> Eugene Volokh: I see. It's an interesting question, more coercive, less coercive. Here's what everybody agrees on in this case. If indeed the government's statements are reasonably perceived as coercive, then this Bantam Books v Sullivan precedent I mentioned comes into play.

And that kind of threat is presumptively unconstitutional because it's government coercion aimed at restricting speech. Then what people disagree on is whether it was coercive enough here. And the other thing they disagree on, which we'll be getting to shortly, is what happens if it isn't coercive. But if it is government working closely hand in hand with the private entities, is that enough to be a First Amendment violation even in the absence of portion?

That's another thing that people disagree on.

>> Jane Bambauer: Okay, so let's now listen to a clip with Justice Kagan.

>> Justice Elena Kagan: Like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech. You just wrote a bad editorial. Here are the five reasons you shouldn't write another one.

You just wrote a story that's filled with factual errors. Here are the ten reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.

>> Eugene Volokh: So Justice Kavanaugh and Justice Kagan had both been in the administration. Justice Kavanaugh in the Bush junior administration, Justice Kagan in the Clinton administration.

So Justice Kavanaugh had said something earlier, not long before, and Justice Kagan was picking up on that. I think what they're describing is the reality, and probably often a benign, maybe even a positive reality of the way the government interacts with the media. So let's say, for example, the government learns that there's gonna be a new op-ed published about, let's say, some law enforcement actions.

So the police chief calls up the newspaper and says, I can't force you to do anything. You know that I can't force you to do anything. You're a newspaper. You defend your First Amendment rights. I'm not trying to restrict your First Amendment rights, but what I am telling you is if you run this op-ed, it's going to undermine our investigation.

As a result, this person who we think committed a serious crime is not gonna get properly prosecuted. Up to you, but we're just trying to appeal to your sense of good citizenship. I think it's pretty broadly agreed that that's permissible. Here's another thing that's permissible and I think is often very valuable.

So the government learns that as an op-ed that just can say things that are wrong, that are false.

>> Jane Bambauer: Yeah.

>> Eugene Volokh: Maybe the way it learns it is that some factor checker calls them up at the outset. But even if they're the ones calling and say, here are the facts, here's why your op-ed is incorrect, or maybe unfair, or just misleading, or spins things in the wrong way.

We just want to lay out the facts for you because we assume you want op-eds on your pages to be accurate. We assume you want your readers to be well informed. We assume you don't want to look like fools when it comes out that the op-ed you published turns out to be completely wrong.

We're not trying to coerce you, but we're hoping we're gonna persuade you into not right falsehood. So here's Probably the sort of thing that is good the government does, at least in certain situations.

>> Jane Bambauer: I completely agree, and I really wish that the plaintiff's lawyers had conceded that cuz that seems totally, obviously a useful way of not only having information flow where relevant and valid from the government to its citizens, but also avoiding sort of constitutional crises where the government is trying to manage things through draconian public law.

So the trouble is that's just not what happened here, right? So they did not say, hey, just for your information, I want you to know you're saying something a little bit wrong. You may not realize this but there's all this vaccine misinformation here. No, they said we're talking internally about what to do right, considering our options for what to do about it, and then they're interspersing.

In addition to the back channel conversations that are going on over the course of a few days, not very long, we also have two press conferences or at least one press conference where the press secretary said that the president has the goal of including possible reforms to section 230 and antitrust reforms in the context of the misinformation crisis, right?

How is that similar to Justice? I'm sure Justice Kavanaugh did all the right things, but he did not say or else, right?

>> Eugene Volokh: Right. So again, you're focusing, quite correctly on this coercion question, whether there was enough here in the record that shows that the platforms were being actually coerced or at least pressured through threat into doing so.

 

>> Jane Bambauer: Right.

>> Eugene Volokh: And again, there's an important factual issue whether there is sufficient evidence of that. But there's also the separate argument which the challengers brought up and which the Fifth Circuit in some measure accepted. And that is even apart from coercion, substantial encouragement might be enough. And in fact, the Fifth Circuit as to one particular government agency, actually said for the statements by this agency, we don't think there's really enough here to show coercion but we do think there's enough to show substantial encouragement.

And that alone, even in the absence of coercion, may be unconstitutional. So that's the more interesting legal question here, as opposed to I agree Whether it was not coercion, which is a factual question also, but less of a likely to set a big, big precedent.

>> Jane Bambauer: Well, I don't know about that.

I think this is one of these cases where the facts that the intertwinement of the facts and the law matter a lot. And if the Supreme Court says that the rule is coercion and there was no coercion here, it's gonna be a big deal.

>> Eugene Volokh: That's a very good point.

 

>> Jane Bambauer: I do think the Fifth Circuit did get something terribly wrong, which is that they said, basically, as a matter of law, anytime the FBI privately suggests that information should not be posted, that that is automatically coercive. And so it's a special sub rule, I guess, that the FBI statements are automatically coercive.

I think that's wrong. I think it's bad policy as well. The FBI needs to be able to talk about threats to cybersecurity and to likely child pornography, likely terrorism, all sorts of things. They need to be able to give information without it being automatically coercive. Okay, but let's listen to what the plaintiff's position actually was.

Here's a clip with the Louisiana Solicitor General responding to Judge Coney Barrett's questions.

>> Justice Sotomayor: No, go ahead.

>> Judge Amy Coney Barrett: I wanna go back to actually your interchange with Justice Kagan about the standards, because I have to confess it left me very confused. It sounded like you were articulating a different legal standard depending on different factual circumstances.

For example, when Justice Kagan gave you the hypothetical of pressure being placed on the New York Times or the Washington Post not to run a particular op-ed, it seemed like you backed off and said, well, significant encouragement wouldn't be enough there, because the person who wrote the op-ed can go to another news outlet.

You also made the point that this is just different because social media is such a concentrated industry, which is a point that Justice Gorsuch was asking Mister Fletcher about. So can you clarify? Did I misunderstand? Because it seems to me that as a matter of law, the same legal standard would have to apply across all of these areas.

 

>> Mr. Aguiñaga: I think that's right, your honor, and I apologize if I wasn't clear earlier. I guess the top line legal standard I would start with was this court's line at 635 in Norwood, which is the court can't do indirectly what it's constitutionally prohibited from doing directly. The second line in response to that is, well, what sorts of indirect mechanisms can the government use that would run afoul of that rule?

I think one potential mechanism is coercion, another one's encouragement this court also has used the term inducement.

>> Judge Amy Coney Barrett: Plain vanilla encouragement, or does it have to be some kind of significant encouragement, because encouragement would sweep in an awful lot.

>> Mr. Aguiñaga: I think that's right, your honor and so let me give you two answers to that the top line answer is.

First amendment purist and so I would say even mild encouragement but we don't need that to win in this case because we are so far afield from whatever that threshold is. So if you wanna say substantial encouragement, like the Fifth Circuit said, and like Bloom said, absolutely, that's a standard that works.

 

>> Jane Bambauer: Okay, so they're going for the whole pie, it sounds like the plaintiffs, I don't think this is strategically wise. But they would like the supreme court to say that even mild-mannered encouragement is enough to trigger first amendment application, is that your understanding?

>> Eugene Volokh: Certainly sounded that way in that exchange and in some others, and if you just step back a bit, and this is a problem that I think lawyers often face.

You've got one polar position, you've got another polar position, and then there are all sorts of ones in the middle, but the ones in the middle, they turn on vague concepts like substantial or unreasonable. And what counts as one or the other, often very difficult to tell, and judges are often reluctant to accept a proposal that would require, especially lower our lower courts all the time to decide, is that substantial, is that not substantial?

So it's tempting to say we're giving you a clear, bright line test, but if the justices in this case don't think that the bright line test makes sense. If they say we can't have the particular poll that you're asking for, then you risk them going to the other poll rather than doing something that's maybe halfway in between, that will at least give you something of what you're asking.

So I think the lawyer may have gotten so concerned about the justices being worried about drawing the substantiality line and figuring out what really counts as too much encouragement. What counts as, okay, encouragement that he made a proposal that I just think most of the justices don't seem likely to be to accept.

 

>> Jane Bambauer: Agreed, okay, so now, Eugene, what would you do if you get to make the rule? If you get to make the rule and you need to use these facts to help us understand the rule, what would it be?

>> Eugene Volokh: Well, so let's set aside the coercion point again everybody knows that, or everybody agrees that coercion is unconstitutional.

That is a coercion on an entity to block speech, block constitutionally protected speech on its platform would be unconstitutional, the question is whether there was enough coercion, that's an important factual question, I'm happy to leave it to you. But let's say so, for example, with regard to the CDC, as I mentioned, the Fifth Circuit said there's not enough evidence of coercion, maybe in part because the CDC doesn't have a lot of coercive power over the platforms, but there is enough evidence of substantial encouragement.

What to do about that? I totally see the appeal of the argument that, look, encouragement is just speech, it's coercion, it's something more. But encouragement is just speech, and the government should be free to encourage people to do, to not say things or not allow things on their property or what have you.

Here's what strikes me as at least a powerful insight that points in the other direction, I'm not sure it's enough to prevail, but let me lay it out. What I think is the strongest argument for the challengers here, let's look at government property, it could be the post office which the government runs.

It could be meeting rooms in libraries that it's opened up to community groups, it could be classrooms after hours at universities or even public schools that it's opened up to student groups or community groups. When the government opens up its own property to the public, it, generally speaking, can't discriminate based on viewpoint on that problem.

So there are examples given in the argument Pro-Terrorist Speech, what about Pro-Terrorist Speech on platforms? What about Anti-Semitic Speech? Well, the government cannot exclude Pro-Terrorist Speech or Anti-Semitic Speech from the postal system. Even if that means that those viewpoints would then end up being distributed with the government's assistance and may cause various kinds of harm, well, the government has to tolerate them.

But here the federal government's position seems to be when it comes to speech on private platforms, we can urge those platforms to try to remove certain viewpoints from there. And even when those platforms are much more important than these government owned properties where viewpoint neutrality is required. We could do everything within our power, short of coercion, just in terms of persuasion, to try to get this very speech that's protected on our property, to get completely excluded to the extent that we can from privately owned property.

Now that may be a reasonable thing, you might say, well, in one situation, the government at least deciding in not quite a coercive way, but at least in a mandatory way, what's louder than its own property in other situations, just urging people, but it's.

>> Jane Bambauer: Wait a minute I think this is very interesting, but can the government, a genuine question here.

Can the government post a sign on the post office or the front of the courtroom steps or whatever, or something that says, please be civil, just be nice to each other? No coercion, not even limiting the property in any way, but just a sort of encouragement to not curse or something like that.

Would the government could do that, but it's pretty clear it won't have much effect, in part because it would be urging the actual speakers themselves who have a good idea of what they wanna say.

>> Eugene Volokh: So if it says Anti-Semitic Speech through the post office, the people who wanna spread Anti-Semitic Speech are gonna say, well, we're not listening to you.

 

>> Jane Bambauer: Okay, good point, but by going to these other distributors, okay, I see.

>> Eugene Volokh: Yeah, so we have a situation where on the one hand, there's been developed over the last 50 plus years. This very powerful doctrine that says we want to preserve government owned property as a place where once the government opens it up to public speech, the government cannot discriminate based on viewpoint.

We're so bothered about the government trying to interfere with the marketplace of ideas that even on its own property, it cannot discriminate based on viewpoint. And at the same time, the government is saying we should be able to try to do everything we can short of coercion, to try to keep those very viewpoints that we are required to allow on our property.

Keep it off much more practically important property in the form of, say, social media platforms. Speech and social media platforms is practically much more significant to public debate than speech in library space that's open. Post office bobbies and whatnot, yeah. So I think that's the heart of the insight on the other side.

 

>> Jane Bambauer: So I think you're actually helping me understand what the plaintiffs even meant when they said the government can't do indirectly what it's not allowed to do directly. You're laying out the distinction between how the government can manage its own public square versus what it can do to try to convince a private public square physically.

Now I see what may have been meant by that argument, okay. Well, so good. I think you might actually go further than I would in that case in terms of what type of rule at least might be justifiable for significant encouragement or for this stuff that's not coercive but nevertheless quite effective.

I was happy with the fifth Circuit test. I just wasn't sure that they applied it right. And what I wish they would have done is explain that substantial encouragement, it's not sort of a subset of coercion. It's this, as we were saying, it's sort of working hand in glove.

And the only example that I thought could qualify as substantial encouragement if we keep the definition somewhat narrow and sort of defensible, I think, to the set of Supreme Court jurors juros would be the example where the FBI at one time recommended to all of the platforms that they create a new category of prohibited content, the hack and leak category.

And so then they all did it. And then once they had this new category of hack and leak, the FBI then subsequently told, basically directed the social media companies that this material, this content, this posted content, that posted content, qualifies as hacked and leaked content. And so they were both creating the category and administering it.

And I thought that was the cleanest example of substantial encouragement, which I think is a bad label, but for this idea of basically completely outsourcing this decision-making to the government.

>> Eugene Volokh: Yeah, so just stepping back, we've been talking about state action, and it's kind of obvious to us what it means.

But it's actually a complicated concept that stems from the fact that most parts of the Constitution are addressed only to the government. So first Amendment says Congress shall make no law. 14th Amendment applies that to state and local government entities, no state shall. Private entities, when, say, a private platform restricts speech on its premises, are on its servers, that's not a First Amendment violation.

It's an interesting debate over whether states could pass statutes that restrict platforms. We talked about that not long ago, but the First Amendment itself doesn't restrict the platforms. Likewise, as I mentioned, if the police search your property, that's a Fourth Amendment violation. If I search your property, maybe that's a trespass, maybe it's not if I have some legal right to do that, but it's not a constitutional violation, but- It's not a Fourth Amendment.

 

>> Eugene Volokh: Sometimes the government interacts with private entities enough that what would otherwise seem to be private action is treated as a form of state action. So one thing is when the private action is coerced by the government, we could say, aha, the state action is the government coercion, and something that would otherwise be perfectly legal but comes unconstitutional because it's really the government doing it.

But another thing that the courts have sometimes talked about is sometimes when private entities and government entities work too closely together, when they interact too much, then that becomes essentially kind of a joint activity, jopint action.

>> Jane Bambauer: Enterprise, yeah.

>> Eugene Volokh: When somebody operates as a willful participant in joint activity with a state or its agents.

So again, what exactly does that mean? Is that every time you talk to the government and sort of listen, pay attention to their suggestions, is that enough?

>> Jane Bambauer: Yeah, like as an example from this case, it probably wouldn't even be enough to have that system where if the government itself gives a recommendation for content that should be deleted, that gets automatically prioritized.

I mean, maybe that's enough, but that would be at best, I think, a close call. But yeah, having another subset of cases or another route to finding state action other than coercion seems sound, it sounds like to both of us.

>> Eugene Volokh: Well, I don't know. I really don't know.

And the beautiful thing about being an academic is it's okay to say this is a really hard question. I'm not sure what the answer is. Maybe when I read the opinions, I'll be persuaded, maybe by the majority, maybe by the dissent. But I do think this is a genuinely difficult question, in part because the line drawing is very difficult.

If you say anything other than either the government can never urge private entities to restrict speech, which can't be right, or the government can always do it, short, of course.

>> Jane Bambauer: Short, of course.

>> Eugene Volokh: So for all these reasons, I'm happy to say, I mean, I hope we've tried to explain the best arguments on both sides to you folks out there, but what would I do?

I don't know. Thankfully, I don't have to. Okay. I'm not to make that decision.

>> Jane Bambauer: Well, then I'm gonna ask you the question that I know you hate, but I'll do it anyway. What do you think these nine justices are going to do?

>> Eugene Volokh: Right, so from the tenor of the argument appeared to be that the justices would say, look, significant encouragement is just fine, at least so long as it's encouragement, just in terms of arguing or urging, rather than offering some tangible incentive that might be different.

Coercion, we've always said, is impermissible. But is there coercion here or not? It sounded to me like the justices would say that on these facts there wasn't coercion, and that might interact with a standing question that I said I would largely set aside it. Maybe they'd say, look, as to the things that happen to these particular plaintiffs, we don't think there's evidence that their speech was restricted based on coercion, maybe.

Some other actions might have been coercive, but they're not fully implicated on this record. It sounded to me, in other words, like the challenges would lose on both the coercion and the significant encouragement argument. Coercion that lose on the facts.

>> Jane Bambauer: Facts, right.

>> Eugene Volokh: Or possibly on standing, whereas significant encouragement that lose purely on the law, saying, there's nothing unconstitutional.

 

>> Jane Bambauer: There's nothing other than coercion that would separate.

>> Eugene Volokh: But, boy, have I been wrong before in predicting what the justices will do?

>> Jane Bambauer: It's possible. So I especially wanna ask you about what you think Justice Jackson is likely to do or say or perhaps write separately about.

But before I do, I think one reason I find it hard to predict this case. I know most of the public media that I've read has suggested that it seemed like the justices were very skeptical of the Fifth Circuit's approach and of the plaintiffs in this case. I found it hard to determine because the Louisiana solicitor general, who happened to be arguing on this day, took such an extreme position.

So, I am not sure,

>> Jane Bambauer: And more extreme than than the justices are compelled to have to take on. So, for example, Kavanaugh, I don't actually know where Kavanaugh's head is. I know he gave the example of the sorts of encouragement that he used when he was working in the White House or the DOJ.

I don't know what he thinks, though, about these facts, even on a coercion standard. Kagan, I think, seemed to suggest that she actually just wants to dispose of this on standing this issue that I agree we should sideline this question of whether these particular plaintiffs were harmed enough.

Provably harmed by what the government had done and are likely to be harmed going forward, which is a way of just not deciding the ultimate legal question that you and I are discussing. But Justice Jackson is way out there, I think. So let's listen to a clip with her.

 

>> Justice Ketanji Brown Jackson: And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country. And you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.

So can you help me? Because I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can interact with the source of those problems.

>> Mr. Aguiñaga: And your honor, I understand that instead, and I guess what I tell you is our position is not that the government can't interact with the platforms there.

They can and they should in certain circumstances like that, that present such dangerous issues for society and especially young people. But the way they do that has to be in compliance with the First Amendment.

>> Jane Bambauer: So, Eugene, what do you think Justice Jackson's rule would be if she were to make one here?

 

>> Eugene Volokh: Well, I'm not sure what she would say in this particular case to dispose of these issues. But it looks like, more generally, in her statements in the argument, she is signaling that she would, in general, be more open to government restrictions on speech, not just government's attempt to persuade, but even government's attempt to.

She used the word pressure here, but in other situations, she even said coerce and compel.

>> Jane Bambauer: Yeah.

>> Eugene Volokh: And I listened to the argument, and I went through the transcript. I found seven instances in which she separately was talking about how as to certain kinds of things, the government ought to be able to coercively block it.

One example that she gave was classified information. So she says, what about the hypo of someone posting classified information? Are you suggesting that the government couldn't say to the platforms, we need to take that down. And earlier she had said, "tell them that the government should be able to tell them to take it down".

And she said earlier in that same passage about that the government can, in certain circumstances, encourage, perhaps even coerce, certain kinds of restrictions. It sounds to me Justice Jackson has a somewhat narrower view of free speech protections than some of the other justices. Other justices have likewise had a narrower view.

The justice she replaced and the Justice she clerked for, Justice Breyer, also at times, he was willing to vote to strike down speech restrictions on many occasions. But more broadly, he embraced an approach to free to speech protections that sometimes is called balancing or sometimes proportionality, suggesting that perhaps the government ought to have more authority.

Other justices in the past, quite respected justices, Justice Rehnquist, who was a prominent conservative, at least earlier in his career, had a pretty narrow view of speech protection. Justice Frankfurter, who was a FDR appointee who was in many ways politically illiberal, but jurisprudentially something of a conservative, he also was willing to see a lot more latitude for government speech restrictions through a kind of balancing approach.

Now, Justice Jackson might use a somewhat different test, maybe a so called strict scrutiny test, which is the official test, but one where the strictness of the scrutiny is- A little more deferential. One interesting thing is the classified information example. That's the Pentagon paper scan.

>> Jane Bambauer: Yeah, it is.

 

>> Eugene Volokh: In 1971, the court, by a six three vote, said, well, if a newspaper is about to itself publish classified information, the government can't compel it to take it down, compel it not to publish it.

>> Jane Bambauer: At least as a priority.

>> Eugene Volokh: It just means, Dissenters, those are, that's a perfectly reasonable position that the dissenters in that case, I believe it was Harlan Berger and Blackmun took.

But I do think that she is charting a more speech protective, friendly approach, at least in certain kinds of situations. Even setting aside the question of speech, of encouragement, that platforms to restrict speech, I think she would be more open even to outright compulsion on platforms to restrict speech.

 

>> Jane Bambauer: So I think you're right. Here's the one way in which she's either confused or helping the plaintiff's side, because the way she described her examples and the way she seemed to be conceptualizing the First Amendment in these cases suggests that she has assumed that the First Amendment applies.

So it seems to me that eight of the justices, or maybe seven or so, and the litigants, are debating whether there's state action here or not. Jackson seems to bypass that question, perhaps even conceding it in order to say, yes, okay, there's state action. Cuz even if there's compulsion that they may have a duty, a practical responsibility to do so, and that would not violate First Amendment rights.

And so I am not sure whether she's actually just not even focusing on the state action question or not aware that she doesn't even need to get to the question of what happens under scrutiny.

>> Eugene Volokh: I think she knows what's going on. And I don't think she's confused.

I do think she has a different perspective. So, the two main views here are some justices, probably a majority, say there's a big, big difference between encouragement and compulsion, and compulsion is bad, but encouragement is fine. Then there are some justices, probably Justices Alito and Thomas, who seem to be taking the view that, well, the difference is overdose stated that, really, compulsion is bad, but substantial encouragement is bad, too.

She seems to be saying.

>> Jane Bambauer: Compulsion can be good.

>> Eugene Volokh: The difference is overstated. Both might be just fine. There's a particular pattern. Passage, let me quote it, she says, you want us to take the line to be between compulsion and encouragement. I'm wondering whether that's not really the line.

The line is, does the government have a compelling interest in doing things that result in restricting the speech in this way.

>> Jane Bambauer: Here's the thing, though, Eugene. She, several times, though, asked whether the position was that once you find compulsion at all, the government automatically loses. And the responding attorney said, well, no, at that point we go through basically the state action at that point applies.

And so, then we have to ask whether the government's action was justified under strict or whatever level of scrutiny is required. And her going back over and over again, though, asking, well, if we find that there was state action, suddenly the government loses, suggests, I think there's genuine confusion.

I have to say, listen to the whole thing.

>> Eugene Volokh: Right, the way that I understood those exchanges were that both sides, or both she and the challenger's lawyer agreed that if there is government action that triggers the First Amendment, the government will only win if it can show that the restriction is narrowly tailored to a compelling government interest passes strictly.

I think it took them a long time to actually get there. So maybe in part because that had been so little discussed in the briefing and the arguments below, but it seemed pretty clear that the challenger's lawyer, his view was, well, obviously, it's unconstitutional to restrict this kind of speech because it isn't narrowly tailored to compelling government interests.

That's an extremely demanding standard, and it can't be satisfied. Here, the government can't say, well, we've got a strict, sorry, we've got a compelling interest in banning dissenting views on all these subjects, so therefore, we're allowed to ban them. And her view seemed to be, well, maybe, maybe if the government says certain kinds of views about vaccines or about various other things are really, really bad, then the government ought to be free to restrict them.

So I do think there's an important substantive disagreement there.

>> Jane Bambauer: But she may be a vote, ironically, in favor of, okay, fine, there's state action, right, there's state action. And then when you get to the second step of asking whether the government action was constitutional or not, at that point she would fall away.

But how?

>> Eugene Volokh: Well, but you know it happens. Sometimes there are cases which actually cause a lot of confusion. I don't think this is gonna be one of them. Sometimes it's or justices would vote one way for one reason, or justices would vote another way for another reason.

And the one just says, well, I agree with parts of what the plurality says, parts of what the dissent says, but I've got my own view theory, which leads me to a different result. And then you wonder, what's the precedent for the future here? My guess is they're going to be five votes again for the proposition that substantial encouragement is just not unconstitutional.

It is actually, substantial encouragement is state action. It's just state action that doesn't implicate the First Amendment because it's not state restriction, just state urging with regard to speech.

>> Jane Bambauer: I see.

>> Eugene Volokh: I think there will probably be five votes for that, maybe more, and maybe Justice Jackson would be one of the votes there.

But it does seem like looking forward to the future in other cases, I would expect her to at times say, look, this is a speech restriction, but it's permissible speaking.

>> Jane Bambauer: It's okay, right.

>> Eugene Volokh: The government has to have the latitude to restrict speech that's really, really harmful.

 

>> Jane Bambauer: I agree, so I think we should leave it there.

>> Eugene Volokh: Yes, well, we could talk for many hours on end, but people can't listen for many hours on end. So it's always a great pleasure discussing these things with you.

>> Jane Bambauer: Yep, thanks, everyone. We'll see you in the next episode.