Amendment 1 — Coercive Government Speech

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While the government has broad latitude to “speak for itself” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn1amd1 " Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229 (2000). ") and to “say what it wishes,” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn2amd1 " Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995). ") it cannot punish those that disagree with its views or use its authority to suppress conflicting opinions.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn3amd1 " See Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002). ") Similarly, the government can attempt to persuade private parties to adopt its viewpoints, but it cannot coerce others into suppressing what the government believes to be objectionable views by threatening legal sanctions or using other coercive methods.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn4amd1 " Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). ") In other words, the government may communicate with third parties as part of its “attempts to persuade” the public, but it cannot cross the threshold into impermissible “attempts to coerce.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn5amd1 " Nat’l Rifle Ass’n of Am. v. Vullo, No. 22-842, slip. op. at 9, (U.S. May 30, 2024) (citing Bantam Books, 372 U.S. at 59-62, 71). ")

To state a claim for unconstitutional coercion of a third party in violation of the First Amendment , a litigant must allege “conduct that, when viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn6amd1 " Id. at 12. ") In National Rifle Association of America v. Vullo, the Supreme Court held that this standard would be met by a New York state official’s alleged threats of enforcement actions against private entities that refused to disassociate from the National Rifle Association (NRA).[7](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn7amd1 " See id. at 1. ")

In Murthy v. Missouri, by contrast, the Supreme Court concluded that the States of Missouri and Louisiana, three doctors, a news website, and a health care activist lacked Article III standing to claim that the government violated the First Amendment by allegedly coercing social media companies to make certain content moderation decisions.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn8amd1 " Murthy v. Missouri, No. 23-411, slip op. at 1 (June 26, 2024). For additional background on the constitutional requirement for standing, see . For additional background on the Murthy decision, see . ") Although the case’s record showed the government “played a role in at least some of the platforms’ moderation choices” affecting the plaintiffs’ online speech,[9](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn9amd1 " Murthy, No. 23-411, slip op. at 12. ") the record did not show specific causation between the government’s actions and the social media platforms’ discrete acts of moderating the plaintiffs’ speech.[10](https://www.law.cornell.edu/constitution-conan/amendment-1/coercive-government-speech#fn10amd1 " Id. at 11. ")

Footnotes

1

Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 , 229 (2000).

2

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 833 (1995).

3

See Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564 , 573 (2002).

4

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 , 67 (1963).

5

Nat’l Rifle Ass’n of Am. v. Vullo, No. 22-842 , slip. op. at 9, (U.S. May 30, 2024) (citing Bantam Books, 372 U.S. at 59-62, 71).

6

Id. at 12.

7

See id. at 1.

8

Murthy v. Missouri, No. 23-411, slip op. at 1 (June 26, 2024). For additional background on the constitutional requirement for standing, see . For additional background on the Murthy decision, see .

9

Murthy, No. 23-411, slip op. at 12 .

10

Id. at 11.