At Volokh Conspiracy, Philip Hamburger (guest-blogging): Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations. From the introduction (to a long post):
Is coercion the First Amendment's measure of the freedom of speech? In commenting on Murthy v. Missouri, Prof. Ilya Somin takes the view that "coercion is the appropriate standard." To this he merely adds that "veiled, but credible threats of retaliation by government officials qualify as such coercion."
So far does he take this emphasis on coercion that, from his perspective, there is no First Amendment violation even when the government uses "significant encouragement" to get the private party to concede "active control" over its speech decisions. In the absence of coercion (including credible threats of retaliation) he apparently sees no limit on the power government can exercise over speech if it gets consent.
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- Abridging vs. Prohibiting
The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.
The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.
It is therefore unconvincing to suggest that coercion is the measure of freedom of speech. That contradicts the plain meaning of the First Amendment when it contrasts abridging and prohibiting.
Where did Prof. Somin go wrong? He gets to his coercion standard from the word "freedom," arguing that if a private party "cut[s] back on speech voluntarily, the freedom of speech has not been abridged." His theory seems to be that you have not had your freedom abridged if you give consent, and you are acting consensually unless you are coerced. Thus, although the First Amendment's very words make clear that coercion is not the standard for freedom of speech, he reintroduces a coercion standard on the theory that it is the opposite of freedom and consent.
But does it make sense to introduce a coercion standard into a right when the Constitution carefully speaks of it in terms of abridging and contrasts that to prohibiting? Such reasoning defeats the Constitution's words and meaning.
Professor Somin responds here: Abridgement, Coercion, and Freedom of Speech: Reply to Philip Hamburger
Posted at 6:02 AM