Columbia law Prof. Philip Hamburger has put up a detailed post responding to my earlier argument that courts should focus on coercion in Murthy v. Missouri, the case where two state governments and other plaintiffs argue that various federal agencies violated the First Amendment by pressuring social media platforms into barring various posts from their sites. I appreciate Prof. Hamburger’s thoughtful post. But I remain unpersuaded.
Prof. Hamburger relies heavily on the use of “abridging” in the Free Speech Clause, in contrast to the use of “prohibiting” in the Free Exercise Clause:
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…
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