Charles Eldred (Attorney at Law) has posted The Administrative Law of Federal Internet Censorship on SSRN. Here is the abstract:
Federal action can be illegal in two ways: by violating constitutional rights or by being “in excess of statutory jurisdiction, authority, or limitations.” The latter kind of violation is a subject of administrative law.
In Murthy v. Missouri, the plaintiffs complained that many relatively anonymous federal officials privately contacted social-media platforms and pressured them to remove certain of the plaintiffs’ posts which expressed certain views. They also complained about public speeches by well-known federal officials, including the President and Surgeon General, denouncing social-media platforms for not removing such posts. They argued that these actions violated their First Amendment rights, and the district and circuit courts agreed. But this article is not about that.
Instead, this article explores the plaintiffs’ unexplored alternative argument that the defendants acted in excess of statutory authority. The defendants essentially admitted they had no statutory authority but asserted that they had inherent authority to “simply engage in basic speech,” even in the absence of statutory authority to do so. This article concludes that some defendants (most obviously the President) do have such inherent authority, but others do not (most obviously anonymous low-level agency employees communicating ex parte with social-media platforms).
The agency ex parte communications were illegal. They were agency actions that were unauthorized by statute. Moreover, they were inherently regulatory (or “coercive” under First Amendment doctrine) and thus properly categorized as “regulation,” not “speech”—and regulation without statutory authority.
But the President does not need statutory authority to use the bully pulpit to criticize posts on social-media platforms. Although this conclusion is seemingly obvious and uncontroversial, the source of such inherent authority is elusive, and the Supreme Court has frequently denied that the President has implicit authority that would cover such use of the bully pulpit. The Court did not bless the President’s bully-pulpit power until 2024 in the Presidential immunity case, but even then did not make clear the source of that authority.
This Article also concludes that the President’s power to demand opinions from top officials authorizes those officials to use the bully pulpit as well, notwithstanding any lack of statutory authorization. But the Opinions Clause does not apply to lower-level bureaucrats.
Barring statutory changes, future disputes over federal government censorship can avoid First Amendment issues altogether. Agencies may not censor because they lack statutory authority. The President and his or her top officials may criticize internet posts. The First Amendment need not be invoked at all.
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