Justice Jackson's Misguided Defenestration Challenge
Suppose someone started posting about a new teen challenge that involved teens jumping out of windows at increasing elevations. This is the challenge. And kids all over the country start doing this. There's an epidemic, children are seriously injuring or even killing themselves in situations. Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?
Remarkably, Louisiana Solicitor General Ben Aguiñaga, arguing for the plaintiffs, said no. After some back and forth to clarify, he asserted that even such encouragement to platforms to take down material promoting what I'll call the defenestration challenge would violate the First Amendment. He said that government officials
absolutely can call [the social media companies] and say this is a problem, it's going rampant on your platforms, but the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you're interfering with the third party's speech rights.
Ideally, Justice Jackson would have taken that (ridiculous) answer and stopped. However, later in the argument, she returned to the defenestration challenge and gave Mr. Aguiñaga an out.
The core argument of the federal government that Deputy SG Brian Fletcher pressed was that in order for the actions of federal officials with respect to private actors to convert those private actors into state actors for constitutional purposes, the government officials must do more than jawbone or otherwise encourage the private actors to take particular steps; there must be coercion. That position clearly struck a chord with Justices Kagan and Kavanaugh, who, as former executive branch officials with policy/political responsibilities, understand that government officials routinely and necessarily encourage (without coercing) actions by private actors. And there's virtually nothing in the record to indicate that Biden administration officials crossed the line between permissible encouragement and impermissible coercion.
Nonetheless, and despite the fact that Justice Jackson appeared to view the federal government's position favorably, she attempted to blow it up. Returning late in the argument to the defenestration challenge, she questioned whether it was proper to worry about the line
between compulsion and encouragement and what we're looking at is the government can't compel, maybe they can encourage. I'm wondering whether that's not really the line. The line is does the government, pursuant to the First Amendment, have a compelling interest in doing things that result in restricting the speech in this way? That test, I think, takes into account all of these different circumstances, that we don't really care as much about how much the government is compelling or maybe we do but in the context of tailoring and not as sort of a freestanding inquiry that's overlaid on all of this. Does that make sense?
At that point in the argument, I wanted to scream "NO, IT DOES NOT MAKE SENSE. WHAT ARE YOU DOING???"
But meanwhile, Mr. Aguiñaga (a former Alito clerk and Ted Cruz protege) seized on Justice Jackson's suggestion. He said:
It does [make sense], Your Honor. . . . I thought we've all been discussing the standard on the front end of the analysis which is is there a First Amendment violation? Is there an abridgement of speech? I guess I would conceptually think of strict scrutiny, narrow tailoring, compelling interest as coming at the back end to say yes, maybe in the ordinary case, the government shouldn't have been permitted to undertake the kind of suppression of free speech that it did, but in this unique circumstance it actually had a compelling interest, and it used narrowly tailored means to accomplish that issue. I mean, I think that's the fail-safe if you're concerned with the breadth of our arguments, that's one fail-safe which is no matter how broad the standard the Court adopts there is always going to be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things you're outlining.
Justice Jackson said "thank you," and then Mr. Aguiñaga was done, leading me to want to scream some more, because this line of questioning allowed Mr. Aguiñaga to obscure the extremity of his position by making it seem like it would not have the far-reaching and unprecedented consequences that Justices Kagan, Kavanaugh, and others had worried about.
Justice Jackson's position seems designed to concede the case to the plaintiffs. If she's right that the action is all in strict scrutiny, then she's conceding state action. But if she's conceding state action, that means she's saying that direct government censorship would be permissible. Would it be? Perhaps a direct ban on promoting the Defenestration Challenge could satisfy strict scrutiny, but even that's not clear. It would not exactly be incitement under the Brandenburg test, after all.
But even assuming that a government ban on private speech promoting the Defenestration Challenge would satisfy strict scrutiny, surely a direct government ban on anti-vax speech or election denialism would not. The SG does not argue otherwise, nor, so far as I'm aware, would any Justice accept such a ban--as they shouldn't.
All of which leaves me with three competing hypotheses.
(1) Justice Jackson believes that a direct ban on anti-vax speech and election denialism can satisfy strict scrutiny. However, that would be truly radical, and I have no reason to think that she is in favor of such a drastic curtailment of free speech doctrine.
(2) Justice Jackson hasn't thought through where her leave-it-to-strict-scrutiny position leads.
(3) Justice Jackson actually agrees with the plaintiffs in Murthy v. Missouri. That is less crazy than it might sound. Although the plaintiffs' position in the case codes as ideologically conservative on the facts before the Court, there is nothing inherently conservative about their position. It is not at all difficult to imagine that in a future Republican administration, government officials might exert subtle and not-so-subtle pressure on social media and other companies to take actions that curtail the free speech of activists for liberal causes.
Indeed, in the companion case argued yesterday, NRA v. Vullo, David Cole and the ACLU represented the NRA, which complains that New York government officials coerced insurance companies to deny the NRA insurance as a means of suppressing the NRA's gun rights advocacy. It's very easy to imagine a case presenting exactly the same legal issues but involving, say, Texas officials pressuring insurance companies in that state to deny insurance to an LGBTQA+ advocacy organization.
So perhaps Justice Jackson--on good civil libertarian grounds--is very worried about the potential for government officials to abuse their bully pulpit power and wants such indirect efforts to be subject to strict scrutiny, even if they don't rise to the level of coercion. If so, her Defenestration Challenge was a subtle way to get there (although I would still disagree on the merits, mostly because of the disruptiveness of a no-jawboning rule).
On the other hand, if the real explanation is (2)--that Justice Jackson intends to rule against the plaintiffs in Murthy v. Missouri but hasn't thought through the implications of her leave-it-to-strict-scrutiny position--I hope the time to reflect will move her to join those of her colleagues who see the line between encouragement and coercion as the best way to get to the right answer.