Opinion: Free-speech cases shouldn’t neuter critical power of the government’s voice

Opinion by Jennifer Jones

(CNN) — On Monday, the Supreme Court heard arguments in two free-speech cases that could have broad implications for the way the government participates in public discourse. Both cases involve private parties who claim that the government violated the First Amendment by coercing others to censor their speech. And both cases involve government officials who claim that they have a right to attempt to sway public opinion through their own speech.

What’s hard about these cases is that both sides have merit. The First Amendment forbids the government from coercing others to engage in censorship on its behalf, but it permits the government to urge action and participate in public debate, even vigorously. The second half of this equation has been understated in the discussion of these two cases, but if the Supreme Court fails to account for it our democracy could suffer.

In National Rifle Association v. Vullo, the NRA argues that Maria Vullo – the head of New York’s Department of Financial Services – violated the First Amendment by pressuring banks and insurance companies to cut ties with the gun-rights group based on its political advocacy. In support of that claim, the NRA – represented by the ACLU (where I used to work) – alleges that Vullo coerced one of the NRA’s insurance companies by promising leniency in enforcing New York’s insurance laws against the company’s “array of technical regulatory infractions … so long as [the company] ceased providing insurance to gun groups, especially the NRA.”

This is a serious allegation of government coercion that (assuming the NRA can substantiate it with evidence at trial) violates the First Amendment. Vullo claims otherwise, arguing that this offer “was typical of the give-and-take that occurs in plea negotiations.” But as the Supreme Court said over 60 years ago, the First Amendment prohibits the government from invoking the threat of legal sanctions to suppress speech it disfavors.

In Murthy v. Missouri, several states and social media users sued President Joe Biden’s administration, claiming that it violated the First Amendment by pressuring the major social media platforms into suppressing what the administration deemed misinformation about the Covid-19 vaccines and the 2020 election. The administration argues that it simply sought to inform and persuade the platforms, which the First Amendment permits.

While the allegations of unconstitutional coercion are much weaker in this case, at least one interaction between the Biden administration and the platforms appears to have crossed the constitutional line (as my organization, the Knight First Amendment Institute at Columbia University, argued in an amicus brief). That interaction involved a heated 2021 email exchange between individuals at Facebook and White House officials, who berated the platform for failing to take down disinformation and then vaguely warned that they were “considering our options on what to do about it.”

In short, the plaintiffs in each lawsuit have a viable First Amendment claim that government officials threatened private parties in an effort to suppress the plaintiffs’ speech.

But the other sides have strong arguments, too.

In 1963, when the Supreme Court decided the case that made clear that the government may not coerce intermediaries (like the platforms) into censoring speech, it also made clear that the government can advise private parties and the public of the government’s views. Lower courts have since drawn a line between coercion (which is unconstitutional) and advice or persuasion (which is constitutional). That line is a crucial one, because it recognizes the right of the public to hear from their government and it recognizes that, to govern, officials must have the ability to attempt to sway public opinion through persuasion.

This principle of persuasion is at work in each of the cases before the Supreme Court, but it’s also at risk. In the Murthy case, for instance, the plaintiffs argue that Biden violated the First Amendment when he accused the platforms, in failing to take down vaccine disinformation, of “killing people.” And they argue that the US Centers for Disease Control and Prevention (CDC) violated the First Amendment by responding to the platforms’ requests for help in determining whether certain posts about Covid-19 were true or false.

Whether or not you agree with the administration’s views on these questions, they were plainly efforts at persuasion, not coercion. In Vullo, the NRA points to New York officials’ public condemnation of the group as part of a coercive campaign targeting its speech. While the NRA is right that Vullo can’t coerce others into silencing the NRA’s speech, public officials are free to condemn the NRA and even to urge others to dissociate from it.

Fortunately, the line of questioning during Monday’s hearing suggests that the Supreme Court is sensitive to the importance of the government being able to express its views to private parties and persuade them to act. A number of justices asked questions that indicate they understand the value of government communications with private actors. In some instances, they reasoned, the government may have exclusive access to valuable information. In others, the government may have a strong interest in preventing harm and protecting public health and safety.

It’s important, then, that in allowing these suits to go forward the Supreme Court reaffirms the important role of the government in being allowed to advocate for its views. As the 2024 election approaches, as gun violence proliferates and as the threat of another pandemic looms, a broad ruling for the plaintiffs at the Supreme Court could preclude government agencies from voicing policy positions on how social media companies should address election disinformation and voter suppression efforts on their platforms.

This includes criticizing powerful groups like the NRA that play a major role in the public debate on gun violence and providing valuable public health information to social media companies as they combat the spread of medical misinformation on their sites.

Such a ruling would diminish our public discourse and disarm our democratically elected government, and underscores why the court should leave space for the government to participate in a free-speech marketplace dominated by powerful companies and interest groups. The health of our democracy depends on it.

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