Over the past several years, I defended the right to free expression against the Biden administration’s sprawling online censorship regime. In the name of public safety, the administration threatened, pressured, and coordinated with social-media companies to limit constitutionally protected speech, including so-called dis- and misinformation about vaccines and the 2020 election. Eventually, the question reached the Supreme Court in Murthy v. Missouri, in which I represented four of the five individual plaintiffs (I continue to represent them on remand in the district court). Last June, the Court found the plaintiffs lacked standing to bring their claims, in the context of an emergency motion for relief, because they had failed to prove the government caused their censorship.
“Civil-liberties violations that you countenance may be turned against you sooner than you expect.”
This precedent will make it immeasurably harder for individuals to successfully litigate First Amendment claims. I warned progressives who backed the government’s position in Murthy and celebrated the Court’s decision that they would someday find their own speech censored under a future Republican administration, using similar justifications. That day has arrived.
Less than a year after the Supreme Court’s decision in Murthy, the Trump administration has launched a multifaceted effort to stifle pro-Palestinian advocacy under the guise of countering anti-Semitism. In addition to detaining the protest leader Mahmoud Khalil, a case that raises its own free-speech issues, the administration has issued Executive Order 13899, which instructs various agencies to monitor institutions of higher education for activities “related to anti-Semitism” by non-citizen students and staff, with an eye toward deporting violators and punishing universities. The administration has already canceled more than $400 million in federal funding to Columbia.
These moves have been justified in the name of combating anti-Semitic harassment, in conformity with Title VI of the Civil Rights Act of 1964, which forbids any person being “subjected to discrimination under any program or activity receiving Federal financial assistance.” On March 10, the administration announced it had sent letters to 60 universities “warning them of potential enforcement actions if they do not fulfill their obligations under Title VI.” Columbia has begun punishing students to ensure compliance with the government’s demands, and other universities will almost surely follow suit to avoid the loss of grant funding.
While some campus protesters have engaged in illegal and harassing acts, the administration’s actions will also inevitably chill constitutionally protected speech. Moreover, the Supreme Court has made clear in the past that the federal government may not condition funding on the suppression of certain viewpoints. For instance, a 1987 decision found that the National Endowment for the Arts could not, through allocation of grants, “preclude or punish the expression of particular views,” while a 1995 decision determined that universities may not predicate funding of student groups on the viewpoint espoused. Columbia and other universities can and should ensure that protesters do not break the law, but the government may not—as it is effectively doing now—deprive a university of funding for allowing the expression of perspectives at odds with US government policies in the Middle East.
Despite these precedents, because of more recent developments in free-speech jurisprudence—some of them recent and cheered on by liberals—I have little hope that these First Amendment claims will be vindicated.
In recent years, the courts have countenanced First Amendment violations in the name of public safety and protection of democracy, heightening the obstacles to bringing such claims in courts of law. The Supreme Court’s decision in Murthy illustrates this tendency. In it, the Court declined to address the merits of the plaintiffs’ claims, instead holding that they did not have standing because they could not show that their censorship resulted from the government’s actions, as opposed to the social-media companies’ independent content moderation policies.
In the coming months and years, students may try to sue on First Amendment grounds if universities discipline them for speech to avoid loss of federal funding or other adverse consequences threatened by the current administration. However, the Murthy doctrine is likely to be an obstacle to such suits.
Prior to Murthy, the Supreme Court’s case law provided that when an individual was alleging a violation of constitutional rights based upon the government’s influence on a third party, causation was presumed. But Murthy heightened the plaintiff’s obligation to show that the government is responsible for his or her injury, requiring that timing or other factors establish with relative certainty that the government was the direct and only cause of the censorship. This means that a student who is disciplined by a university in apparent response to Trump’s executive orders and other actions will now have to show that the punishment resulted directly and exclusively from the government’s coercion or pressure, and was not an independent course of action the university might have taken on its own.
It is possible that courts will have an easier time finding causation in these cases than they did in Murthy. The behind-the-scenes nature of the Biden administration’s censorship operations may have allowed it to escape accountability in a way that the Trump administration will not, given its blunt and very public approach. Nevertheless, the lesson of the past five years is clear: Civil-liberties violations that you countenance will be turned against you sooner than you expect. That is why we need a renewed commitment to civil liberties from both the left and the right, not the sort we have seen in which each side uses the concept as a cudgel when convenient.