Rejoinder: Philip Hamburger


Professor Philip Hamburger is now on the Post A response The following are some of the ways to get in touch with us: my critique You can also find out more about the following: His post On the social media cases of free speech currently before the Supreme Court. The Supreme Court responded to My earlier argument The courts should focus on coercion Murthy v. Missouri. This is the fifth post of this series for those who are keeping track.

In his Latest Post, Prof. Hamburger accuses that I repeat my “errors.” But I remain unrepentant. Hamburger has redoubled his mistakes.

He continues to ignore the importance of the First Amendment, which protects “Free Download “Freedom of expression.” Freedom is by its nature a voluntary choice. Freedom cannot be restricted if there is no coercion. It’s true, even if Prof. Hamburger is absolutely right when he describes the First Amendment Free Speech Clause (which he does) as a limit on government. The limitation it imposes is that it prevents the government from using compulsion in order to restrict speech. It does not, however, prevent the government from using compulsion to restrict speech.

Prof. Hamburger continues to stress that the First Amendment prohibits “abridging” freedom of speech as opposed to “prohibiting freedom of religion”. I agree that this means that free speech is given a greater level of protection than religious liberty. It must still be protected from some form of compulsion. Freedom cannot be restricted if there is no compulsion. The distinction in language simply means that even mild forms of coercion which may not reach the level of “prohibition”, can still be classified as “abridgement”.

Hamburger claims that my view would allow government to “buy-off” its critics. But conditional government benefits upon the exercise of constitutional right (or refraining to exercise them) raises further constitutional problems. It implicates, among other things the doctrine of “unconstitutional conditions,” The government is prohibited (at least in most cases) from discriminating against people based on their speech when it comes time to distribute government benefits. So, for instance, the government can’t adopt a law that restricts Social Security benefits for people who express their support for the Democratic Party or refrain from criticizing it. Persuasion and “jawboning”, for example, do not qualify as discrimination.

Prof. Hamburger also reiterates his dubious assertion that social media platforms have no free speech rights in relation to the material they publish on their website. But, as discussed my previous postIn fact, platforms exercise editorial control of what speech is allowed on their websites, through their Terms of Service. In that regard, they are similar in many ways to media organizations like Reason You can also call it New York Times.

Hamburger says that platforms have sometimes removed speech, even without changing the terms of service. But he’s missing the point. The existence of terms and conditions that place substantive restrictions on the types speech platforms allowed on the website shows that they are not “public spaces” where anyone can say anything they want. They are private properties where the owners have editorial control over speech. They can do this through the terms of service. But, unless otherwise prohibited by freely assumed contractual obligations, they may also do this in other ways.

In his latest blog post, Prof. Hamburger continues to promote the double standard. He has a very broad view of what’s prohibited by the First Amendment in terms of non-coercive persuasion from government to ban social media posts but a narrow one when it comes to Texas and Florida try to force social media companies They can host a speech that they dislike. He now tries justification by claiming that social networks are “common carriers.” This analogy is flawed for the reasons I have outlined Here’s how to get in touch with us.

Social media companies have never been considered common carriers by law in the past. State governments can’t make them common carriers by a simple legislative fiat. They could also use the same strategy to force other private organizations to publish speech that they disapprove by passing laws declaring those entities to be “common carrier” as well. So, they could force Fox News air more leftist views, compel them to change their policies. New York Times You could also publish more of the right-wing ones.

Prof. Hamburger accuses that I have departed from libertarian principles because of my focus on the coercive. But the distinction between coercion and voluntary action is actually fundamental to libertarianism—and, indeed, to most other forms of liberalism. It is, in fact, usually opponents of libertarianism—particularly left-wing ones—that seek to efface the distinction between the two, thereby justifying government intervention to protect people against supposedly oppressive voluntary relationships. These arguments are often used to justify restrictive labor laws, for example when it’s claimed that voluntary agreements such as those to work beyond a certain amount of time or for a pay below minimum wage are “exploitative”.

Finally, Prof. Hamburger complains when I point out that speech is sometimes a “public evil” and worries that this is somehow a reason for suppression. I think that it’s pretty obvious that some speech is bad. You can learn more about it here. It can lead to horrendous government policies. It was the same with Nazi and Communist speech.

It does not follow that the government has a right to suppress such speech. Even speech that promotes awful ideas is an exercise in an important individual right. And there is—to make an obvious  point—good reason to distrust government judgments about which speech is harmful and which is not. There should be a strong presumption that the government cannot deal with this public evil through coercive regulation.

By contrast, the use of non-coercive suasion—whether by the government or private parties—doesn’t pose anything like the same risks. Private entities who disagree with the position of the government will still be able to publish opposing viewpoints. So long as there’s a demand for these views, there will always be incentives to publish.  If the government convinces Twitter or Facebook to remove them, this creates an incentive for others.

There are many reasons to be concerned with the government’s use of coercion in order to suppress speech (as Biden Administration may have done in Murthy v. Missouri), or to compel it (as Texas and Florida are trying to do). But the First Amendment does not bar the government—or anyone else—from using non-coercive persuasion.

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The echelon series.