In crowded week for free speech, justices hear 3 First Amendment cases

If you like this post, sign up to get The Nuance newsletter delivered straight to your inbox every Sunday night!

It’s a refrain you’ve heard us emphasize before: The current U.S. Supreme Court has a remarkable appetite for free-speech controversies, and it’s difficult to think of a recent term that measures up to this one in either the volume or the significance of the First Amendment questions presented. (Don’t just take my word for it: The Foundation for Individual Rights and Expression’s Robert Corn-Revere, who has previously appeared before the justices himself, described this year’s slate as “the most consequential in my 40-year career practicing First Amendment law.”) Three of those controversies came before the Court for argument in the last week alone, conversations that underscored the diversity of perspectives the justices stake out when it comes to the freedoms of speech and the press.

Monday kicked off with the most significant of the trio, Murthy v. Missouri, in which a coalition of states and private individuals alleges that the federal government violated the First Amendment by encouraging social media platforms to remove false or misleading posts about, say, the safety of vaccines. The U.S. Court of Appeals for the Fifth Circuit had agreed, taking a remarkably broad view of the Constitution’s limits on the government’s ability to speak to the private sector. In the panel’s view, facts as banal as the observation that the platforms asked the Centers for Disease Control and Prevention “whether certain controversial claims were ‘true or false’” provided proof of undue entanglement between the government and private speakers.

As we warned in a friend-of-the-court brief, that kind of hair-trigger test for malign government influence could, itself, undermine the freedom of the press. It should go without saying that news organizations speak daily to government sources, whether official or off-the-record, in search of the truth — sources who would clam up if interactions as routine as fielding a question about a controversial policy issue were haunted by the prospect of First Amendment liability.

We were relieved to hear a number of justices echo that concern, which emerged as one of the argument’s central themes. Justices Brett Kavanaugh and Elena Kagan were especially vocal in highlighting that Missouri’s theory would outlaw routine contacts between the government and the news media. (As former government lawyers, they sounded more protective of public officials’ right to criticize articles that irk them than they did the free flow of information — but both lines of concern point to the same result.) By the close of the argument, it seemed likely that the same six justices who voted to pause the injunction Missouri had won against the government below would likewise vote to vacate it. Whether the Court will reject Missouri’s theory of coercion outright — or conclude more narrowly that the plaintiffs never proved the government had anything to do with closing their accounts — is harder to forecast.

For the long-run trajectory of the First Amendment, though, perhaps the most interesting dynamic at argument was Justice Ketanji Brown Jackson’s questioning.  As Professors Eugene Volokh and Michael Dorf separately observed, Justice Jackson in recent cases has floated positions that would shrink the reach of the First Amendment to (in Dorf’s words) a “truly radical” degree. Indeed, in pressing whether the government should prevail in Murthy because it could have simply ordered the platforms to take down certain kinds of speech, Jackson seemed to suggest — perhaps inadvertently — that she disagreed with the landmark Pentagon Papers decision.

Whether those trial balloons reflect a deliberate drive on Justice Jackson’s part to weaken the First Amendment’s safeguards is an issue to watch as the term’s opinions start to come down.

With Murthy submitted, next came something of a companion case, National Rifle Association v. Vullo, where the justices weighed whether a New York financial regulator went too far in warning companies of the “reputational risk” of doing business with the NRA. (The Reporters Committee didn’t file in this matter, which presents a more run-of-the-mill application of the line between coercion and persuasion; the justices may have granted it to be sure of a chance to clarify that boundary if Murthy is resolved on other grounds.) There, a majority of the Court seemed inclined to side with the NRA — and, in an odd role reversal from the morning’s earlier argument, the U.S. solicitor general — in finding that New York violated the First Amendment.

But the justices weren’t done yet. Wednesday brought Gonzalez v. Trevino, the week’s final First Amendment case, which asks what kind of evidence plaintiffs need to provide to demonstrate that they were arrested in retaliation for their speech or newsgathering. The Fifth Circuit — we hear a lot about them these days, don’t we? — had held that a plaintiff whose arrest was supported by probable cause needs to point to specific examples of individuals who engaged in the same conduct but weren’t punished, a task that may be impossible when no comparator is available. As we flagged in a friend-of-the-court brief, the absurd implication of that rule would be that officers who wrongfully arrest the only journalist (or every journalist) covering a protest couldn’t be held accountable because no one could highlight a reporter who wasn’t arrested.

Here, the Court seemed balanced on a knife’s edge. Justices John Roberts, Clarence Thomas, Samuel Alito, and Kavanaugh all signaled concern that taking too broad a view of the evidence that can prove retaliation would open the floodgates to frivolous claims. To differing degrees, the remaining justices registered concern with the narrowness of the Fifth Circuit’s view — which Justice Kagan called “a little bit nutty” — but how deep those anxieties ran was unclear. Justice Amy Coney Barrett, who pressed counsel on both sides, raised the issue of protest cases in particular and won a concession from defendants’ counsel that “the only journalist arrested for assembly” is the prototypical plaintiff who should have a strong retaliation claim. Whether defendants persuaded the justices that that’s actually true under the Fifth Circuit’s rule is another question.

We may be waiting some time for these opinions to issue. As these cases underlined, the Court isn’t of one mind — or even two straightforward blocs — when it comes to the freedoms of speech and the press. And while the Court will likely hope to harmonize (as best it can) its answers to the full slate of First Amendment issues raised this term, that task will be a challenging one when there may be as many distinctive camps to reconcile as there are justices.

Stay tuned for June.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.