In other words, government cannot simply outsource its censorship efforts to private parties to do their dirty work.

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We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief.  

That was the United States Supreme Court in Bantam Books, Inc. v. Sullivan (1963), which held that government can violate First Amendment free speech protections even through “thinly veiled threats” against private parties whose refusal to cooperate would violate no law.  

It’s a common misconception among the public, and even many attorneys, that the First Amendment only protects against direct government coercion through explicit threats or enforcement.  

Neither assumption is correct.  

First, as noted above, suggestive intimidation and coercive persuasion can constitute unconstitutional suppression of speech, even without direct compulsion or prosecution.  

Second, constitutional violations can be found where government officials “jawbone” or otherwise intimidate private entities through “significant encouragement” to limit other citizens’ ability to speak.  In other words, government cannot simply outsource its censorship efforts to private parties to do their dirty work.  

The Supreme Court revisited that issue this week in one of this term’s most anticipated cases, Murthy v. Missouri.  The case derives from Biden administration efforts in 2021 to pressure social media companies to block discussion of Covid and other issues of public policy controversy.  

More broadly, the case highlights the Orwellian way in which the Biden administration hypocritically threatens democracy while sounding the alarm on alleged threats to democracy in its increasingly desperate reelection effort against Donald Trump.  

Naturally, the Biden administration pleads that it was merely seeking “to inform and persuade,” not intimidate or coerce.  In addition to the threatening correspondences with the targeted social media entities themselves, however, the White House went so far as to publicly and repeatedly threaten “legal and regulatory measures” if the speech at issue wasn’t censored.  

Those Biden administration threats eerily parallel the government behavior at issue in the Supreme Court’s Bantam Books decision:    

It is true that appellants’ books have not been seized or banned by the State, and that no one has been prosecuted for possession or sale.  But though the Commission is limited to informal sanctions – the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation – the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed “objectionable,” and succeeded in its aim…  

It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was “free” to ignore the Commission’s notices, in the sense that his refusal to “cooperate” would have violated no law.  But it was found as a fact – and the finding, being amply supported by the record, binds us – that Silverstein’s compliance with the Commission’s directives was not voluntary.  People do not lightly disregard officers’ thinly veiled threats…  (Emphasis added.)  

Troublingly, during this week’s oral argument a Supreme Court with an otherwise welcome record of curtailing Biden administration overreach signaled excessive sympathy toward the federal government’s future ability to engage in public persuasion, as opposed to excessive coercion.  

The Bantam Books ruling, however, anticipated precisely that balance:  

In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors prior to the institution of a judicial proceeding can never be constitutionally permissible.  We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity.  Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms.  

As in Bantam Books, the Biden administration’s behavior grossly transgressed those reasonable limits.  It didn’t engage in “private consultation,” but rather substantial public and private intimidation.  

Meanwhile, the Biden administration and its allies are engaging in such other activities as attempting to ban third parties from appearing on presidential ballots this November, and interfering with Israel’s democracy by maligning the country's elected prime minister with whom opposition parties have voluntarily forged a unity government following the October 7 attacks.  

Collectively, these behaviors create a mosaic of anti-democratic behavior by the same Biden administration that increasingly resorts to accusing political opponents of threatening democracy.  The question now becomes how the Supreme Court and the American electorate respond to that threat.