A lot to recap this week (first and foremost, it was my birthday!). So I’m sparing you some witty intro so we can get right into it.
Arguments went surprisingly unwell for the plaintiffs in Murthy v. Missouri, though they went somewhat better for the National Rifle Association in NRA v. Vullo. Both cases involved allegations that the government was trying to coerce private actors into doing their unconstitutional bidding (aka jawboning). In Murthy, the plaintiffs had alleged that the government was, ahem, nudging social media companies into deplatforming certain speakers based on those posters' beliefs about Covid. In Vullo, the NRA alleged the head of the New York’s Department of Financial Services had encouraged banks and insurance companies not to do business with the NRA based on its pro-gun rights stance. The thrust of both cases is that government can’t engage in viewpoint discrimination, so it also can’t use its coercive power to get private parties to do the discriminating on its behalf.
In both cases, the government argued that it may exercise its own right to speak by “informing, persuading, or criticizing private speakers.” Sure, sure, sure. Fine. Whatever. The question is, when does that “persuading” cross the line into unconstitutional manhandling? It’s a fine line, my friends. Especially given the amount of laws on the books and ability of regulatory bodies to threaten a denial of a permit, penalties, fees, or even an investigation (which, even if eventually dropped, can cost a substantial amount of money and reputational harm).
The government contends it speech crosses the line only if, viewed objectively, it conveys a threat of government action, and there was no threat here. It wants to be able to “inform” government parties of “misinformation,” or “malign foreign interests,” or what have you, and it fears that if the test is too strict, it won’t even be able to send letters or have meetings saying “this is what we saw on your platform, do with it what you will.”
In addition to saying it was just exercising its own speech rights, the government argued that the parties were trying to “us[e] Article III courts to audit government communications with social media platforms.” It’s a tired argument. Anytime people want to enforce the Constitution, government makes it out to be some nefarious interference with its behavior. Making a case that the government violated the Constitution isn't a policy dispute, it's a legal one. And we'd all be better off if we realized that judges exist exactly to adjudicate these kinds of controversies.
Of course, the government also made a standing argument. In Murthy, the government claimed that the plaintiffs hadn’t shown that the government was going to get a platform to censor their speech in particular, or that the government was the primary motivating factor in the platforms’ decisions. Many of the justices actually seemed to view this standing argument as too strict, which was a welcome surprise (usually courts are all to keen to punt).
For good measure, the government also threw in a national security reference: accepting the plaintiffs’ arguments, it claimed, would hamper “FBI agents trying to protect the nation from foreign threats.” Hey, scare tactics work!
After confessing to having seen or heard or even been a part of similar efforts while working for the government, Justices Kavanaugh and Kagan expressed concern that the plaintiffs’ proposed test would hamper legitimate governmental efforts to inform private parties about untruthful op-eds or security threats. This perspective will undoubtedly be persuasive with the other justices; none of them are going to overturn a practice that Justice Kagan said happens and has been happening "10,000 times a day" at DOJ.
Justice Sotomayor also seemed skeptical of the plaintiffs, saying she had “such a problem” with their brief. She seemed to think the plaintiffs’ briefs weren’t entirely truthful in their characterization of the social media companies’ conduct or the timeline of events. And many justices seemed confused about the plaintiffs’ proposed test for determining coercion.
Justice Alito, for his part, seemed just the opposite: he was concerned that this behavior would spread from social media platforms to traditional news. What would we say, he asked, if the government was getting cozy with journalists and giving them lists of things to take down or people to deplatform? Is it really okay even for the government to say things like “we’re partners,” or “we’re on the same team?”
The government resorted to pathos, saying that a ruling for the plaintiffs would prevent it from doing things like “call[ing] on colleges and universities to do more about anti-Semitic hate speech on campus,” after October 7th, or “encourag[ing] parents to monitor their children's cell phone usage.” My own (evergreen) response is why doesn’t the government just do less? We don't need you to do any of these things. We need you to just let us live our lives.
The attorney in Vullo seemed to have an easier time, first because there was more obvious evidence that the government had outright targeted NRA for the sake of burying it (one official had tweeted, for example, “#BankrupttheNRA”) and, second, because the government was more clearly outright threatening businesses with potential punishment. On the whole, then, the Court seems sensitive to the problem of jawboning but also sensitive to the government’s desire to engage with private parties about what it perceives to be misinformation.
The other big argument of the week was Gonzalez v. Trevino, involving a 72 year old city council member’s allegation that the mayor and others’ weaponized an evidence tampering statute against her to neutralize her and her political opposition. Usually, probable cause is sufficient to defeat a retaliatory arrest claim. But under Nieves v. Bartlett, a person can demonstrate retaliatory arrest even in the face of probable cause by demonstrating that he or she was arrested when others similarly situated were not. The question in Trevino is what kind of evidence plaintiffs can introduce to meet that standard. The Fifth Circuit interpreted it strictly, essentially requiring concrete examples of arrests that never happened under the exact same circumstances (prove a negative, people! Should be easy). But the plaintiff (and the U.S. government arguing as amicus curiae) think at the very least, people should be able to introduce other evidence tending to show that the arrest was an outlier.
Arguing for the government, SCOTUS superstar Lisa Blatt argued that the plaintiffs’ proposed standard would allow judges to start second guessing law enforcement, and that people who steal, commit domestic violence, or engage in other serious crimes are going to be able to make excuses for their arrests. At one point, she said that under the plaintiff's standard for retaliatory arrest, she would “advise every criminal to put a... political bumper sticker on their car.”
Her emphasis on serious crimes seemed to underscore that the only reason we care about the false arrest in this case is because the underlying “crime” is so silly: the councilwoman had put some documents into her folder and the city council used a pedantic reading of an infrequently used law to charge her with evidence tampering. In other words, part of the problem here is the proliferation of crimes: it makes it easy for officials to weaponize laws, and to do so for pretty benign behavior. But that’s not so much a problem with the retaliatory arrest standard as it is with the underlying substantive criminal law. We don't want to make retaliatory arrest claims too easy to make just because the underlying laws are silly.
However, we also don't want to veer too far in the other direction and effecitvely nullify the First Amendment. At one point Justice Kagan asked a hypothetical about a video being found that shows city officials deliberately targeting someone for their viewpoint. If Blatt’s test can’t accommodate that, then there’s something wrong with her test.
Justice Kagan’s hypothetical led to this interchange.
I found it amusing because it shows three dynamics that are always true at the Court: 1) Justice Kagan is the hypothetical queen, 2) Justice Gorsuch hates when people fight hypotheticals, and 3) Lisa Blatt is fiery.
Later, Justice Alito remarked:
So true, Justice Alito. So true.
Last, I found the rebuttal by Gonzalez's attorney very nicely done.
