This month, the Supreme Court reviewed a trifecta of free speech cases that has government and civil libertarians alike on edge. While each of the cases raises an insular issue, they collectively run across the waterfront of free speech controversies facing this country.
For some of us, what was most chilling from oral arguments were the sentiments voiced by justices on the left of the court, particularly Justice Ketanji Brown Jackson. The court may now be reflecting the shift among liberal scholars and politicians away from freedom of speech and in favor of greater government speech regulation.
In my forthcoming book, “The Indispensable Right: Free Speech in an Age of Rage,” I explore the evolution of free speech in the United States, including the failure of the Supreme Court to protect free speech during periods of political unrest. Although a new revolutionary view of free speech emerged at the founding of the republic, it was quickly lost due to the regressive views of the federal courts over centuries of conflicted decisions.
We are now living through one of the most anti-free speech periods in our history. On our campuses, law professors are leading a movement to limit free speech under the pretext of combating hate speech or disinformation. A dangerous triumvirate has formed as government, corporate, and academic interests have aligned to push limitations of free expression.
That triumvirate is now before the Supreme Court, which is looking at cases where government officials targeted critics, dissenting websites, and revenue sources.
What was disconcerting was to hear many of those same voices from our campuses echo this week on the court itself.
In Murthy v. Missouri, the court is considering a massive censorship system coordinated by federal agencies and social media companies. This effort was ramped up under President Joe Biden, who is arguably the most anti-free speech president since John Adams. Biden has accused companies of “killing people” by resisting demands to censor opposing views. Even though the Administration was dead wrong on many pandemic-related issues, ranging from the origin of COVID-19 to the efficacy of masks, thousands were banned, throttled, or blacklisted for pointing this out.
Biden’s sole nominee on the Court, Justice Ketanji Brown Jackson, has long been an enigma on the issue of free speech. That is why these oral arguments had some alarming moments. While her two liberal colleagues tried to suggest that some communications may not be coercive as opposed to persuasive, Jackson would have none of it. She believed that coercion is perfectly fine under the right circumstances, including during periods like a pandemic or other national emergencies claimed by the government. When dangerous information is spotted on social media sites in such periods, she seemed to insist, the government should feel free to “tell them to take it down.”
The sweeping quality of Jackson’s remarks shows that the relativistic views of free speech may now have a new champion on the court.
In a second case, National Rifle Association of America v. Vullo, the Court considered an effort by a New York regulator to discourage banks and insurers from working with the NRA. Maria Vullo, who ran New York’s Department of Financial Services, allegedly used her office to pressure these businesses to cut off financial support for the nation’s leading gun rights organization.
As with Murthy, the Vullo case captures one of the principal tactics used by the anti-free speech movement in attacking the advertisers and businesses of targeted individuals and groups. One such government grant resulted in a list of the ten most dangerous sites for advertisers to avoid, a list that happened to consist of popular conservative and libertarian news sites.
The idea of a Democratic New York regulator targeting a conservative civil rights organization did not appear particularly troubling in oral argument for some of the justices. In fact, the views expressed by some of the justices were appallingly dismissive. Justice Elena Kagan asked “if reputational risk is a real thing, and if gun companies or gun advocacy groups impose that kind of reputational risk, isn’t it a bank regulator’s job to point that out?”
In the third case, Gonzalez v. Trevino, the Court was considering the arrest of Sylvia Gonzalez, a 72 year-old former councilwoman in Castle Hills, Texas. She earned the ire of the sheriff, mayor, and other officials with her criticisms of their conduct. She was subsequently charged with inappropriately removing a government document (a citizen petition) that she had mistakenly put with other papers. The charges were later dropped. The case smacked of retaliation — there is no evidence that anyone else has faced such a charge in similar circumstances.
The case resonates with many who believe that the legal system is being politically weaponized in this country. Many of us are appalled by the Gonzales case. However, in this case, the support for the government seemed to come from the right of the Court, including the author of a prior decision limiting such challenges, Chief Justice John Roberts.
The free speech trifecta, therefore, covers the three areas of greatest concern for the free speech community: censorship, blacklisting, and weaponization. The resulting opinions could curtail or magnify such abuses. For example, the social media case (Murthy) seemed to trouble the justices as to where to draw a line on coercion. If the court simply declines to draw such a line and rules for the government, it will likely fuel new censorship efforts by federal agencies.
What is disconcerting about the views expressed by Justices Kagan, Jackson, and Sonia Sotomayor in two of the cases is not that they are outliers. The problem is that liberal justices long acted as the bulwark for free speech on the court. They are now viewed as the weakest link, often dismissive or hostile to free speech arguments.
When Justice Jackson defends the right of the government to coerce speech, she follows a long legacy of speech relativists on the court, including the earlier Justice Robert Jackson. He had warned that the court needed to approach speech prosecutions with “a little practical wisdom,” so as not to “convert the constitutional Bill of Rights into a suicide pact.”
The current Justice Jackson seemed to channel the same practicalities over principle in stressing that “you’ve got the First Amendment operating in an environment of threatening circumstances from the government’s perspective.”
The view of speech as harm or violence is all the rage on college campuses, and also in many Western countries where free speech is in a free fall. France, Canada, and the United Kingdom now regularly arrest people for expressing hateful or controversial viewpoints. Those same anti-free speech arguments are now being heard in our own Congress and colleges in the U.S.
It is not clear how the court will ultimately decide these cases. One fear is that it could retreat to blurry lines that leave us all uncertain about what speech is protected. In an area that demands bright lines to prevent the chilling effect on speech, such vague outcomes could be lethal.
The government loves ambiguity when it comes to speech regulation. It now may have found new voices on the left side of the Court to join in the ignoble effort of combating free speech. That renewed effort to introduce “a little practical wisdom” could mean a lot less freedom for Americans.
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of Public Interest Law at the George Washington University Law School, where he teaches a class on the Constitution and the Supreme Court.
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