The Tightrope Walk of Government Speech and Free Expression: A Look into Two Pivotal Supreme Court Cases
The Supreme Court recently heard arguments in two significant cases that revolve around the First Amendment and government participation in public discourse. Both cases involve private parties accusing the government of coercing them into censoring speech, while the government maintains its right to urge action and engage in public debate.
One case, National Rifle Association (NRA) v. Vullo, focuses on New York’s Department of Financial Services head Maria Vullo’s alleged coercion of an insurance company to sever ties with the NRA based on its political advocacy. The NRA argues that Vullo promised leniency in enforcing insurance laws if the company ceased providing insurance to gun groups, a claim Vullo denies. This allegation, if proven, would indeed constitute a violation of the First Amendment’s prohibition against government coercion of intermediaries to suppress speech.
In Murthy v. Missouri, several states and social media users filed a lawsuit against the Biden administration over its attempts to persuade major social media platforms into suppressing what it deemed misinformation about Covid-19 vaccines and the 2020 election. While the allegations of unconstitutional coercion are weaker in this case, one interaction between White House officials and Facebook does seem to have crossed that line.
Both sides present valid arguments. The First Amendment forbids the government from coercing intermediaries to engage in censorship on its behalf, yet it permits the government to advise and persuade private parties and participate in public discourse. Striking this balance is crucial for our democracy, as it enables the public to hear from their government while allowing officials to attempt to sway opinion through persuasion.
In 1963, when the Supreme Court established this principle in the case of New York Times v. Sullivan, it acknowledged that the government can offer advice and persuasion without crossing the line into coercion. Since then, lower courts have drawn a line between coercion and advice or persuasion, understanding that this principle allows the government to communicate its views and enables effective governance.
However, both cases present challenges to this principle. For instance, in Murthy, the plaintiffs argue that Biden’s accusation of social media platforms for “killing people” by failing to remove disinformation and CDC’s response to the platforms’ requests for help in determining truthfulness constitute attempts at coercion rather than persuasion. In Vullo, New York officials’ public condemnation of the NRA could be seen as a coercive campaign targeting its speech, although they are free to voice their opinions and urge others to dissociate from the NRA.
The Supreme Court’s questioning during Monday’s hearing indicates that it recognizes the importance of government communication with private actors and their role in preventing harm, protecting public health and safety, and providing valuable information.
By allowing these suits to proceed, the Supreme Court should reaffirm the government’s role in advocating for its views, as this will be essential during critical moments such as election seasons, gun violence crises, and public health emergencies. This includes criticizing powerful groups like the NRA and providing valuable information to social media companies as they combat misinformation on their platforms.
A broad ruling for the plaintiffs could restrict government agencies from voicing policy positions and undermine our public discourse, essentially disarming our democratically elected government. Ultimately, the health of our democracy depends on a well-defined line between coercion and persuasion in government speech.
