James Pfister: First Amendment versus national interest

The First Amendment to our Constitution states that “Congress shall make no law … abridging the freedom of speech or of the press …” Justice Katanji Brown Jackson raised some eyebrows when she said, in an oral argument in Murthy v. Missouri: “My biggest concern is that your view has the First Amendment hamstringing the federal government in significant ways in the most important time periods.” She was suggesting that there are limits on the First Amendment based on the national interest.

Objections arose. One commentator said that hamstringing the government is “literally the point” of the First Amendment. “Congress shall make no law” means no law. The Bill of Rights was supposed to hamstring the federal government.

Not so. The rights of the Bill of Rights are not absolute. They can be limited by a sufficient national interest.

We can posit three levels of national interest from low to high: an ordinary governmental interest, a compelling governmental interest, and an extraordinary exacting governmental interest. A compelling governmental interest is part of the “strict scrutiny” test. In that test, the governmental interest must be “compelling” and the means chosen to pursue it (the governmental action) must be necessary (that there is no alternative that is less restrictive). The exacting governmental interest is an interest advocated by those who want to give more protection to the First Amendment.

These issues were raised in a recent appeal to the Supreme Court that was denied: X Corp., fka Twitter, Inc., Petitioner v. Merrick B. Garland, Attorney General, et. al., cert. denied, Jan. 8, 2024. The issue was prior restraint of speech by the government. The government won in the Ninth Circuit. X Corp. appealed to the Supreme Court; the court let the Ninth Circuit governmental suppression of speech stand.

In the X Corp. case, the FBI issued a national security letter to X Corp. not to disclose certain information to its subscribers for national security reasons. The Ninth Circuit agreed with the District Court that the governmental interest here was compelling and that the FBI letter was necessary. The strict scrutiny test here allowed the government to suppress the speech.

Those who appealed wanted the Supreme Court to adopt a more stringent test in prior restraint cases than the strict scrutiny test: the “extraordinary exacting scrutiny” test. Their Brief stated: “… the Ninth Circuit has established its own precedent where prior restraints are given the same weight as post hoc speech restrictions. Given that First Amendment jurisprudence has consistently found prior restraints to be a greater encroachment than regular content-based restrictions, this ruling should not be allowed to stand.”

The petitioners cited the Pentagon Papers case (New York Times Co. v. United States, 1971) where the Supreme Court upheld the right of the New York Times to publish sensitive information regarding Vietnam against the wishes of the government. Justice Potter Stewart wrote in concurrence to this joint opinion that prior restraint would be justified only if disclosure would “surely result in direct, immediate, and irreparable damage to our Nation or its people.” Petitioners believed that standard was more stringent than strict scrutiny. Our Solicitor General, Elizabeth Prelogar, disagreed in her Brief and argued that the strict scrutiny test applied to the Pentagon Papers case and that a more stringent test was not needed. The Solicitor General would uphold the Ninth Circuit’s First Amendment limitation for the sake of the national interest.

Either way, whether using strict scrutiny or an extraordinary exacting scrutiny test, the government can limit the First Amendment right for a sufficient national interest and that was what Justice Katanji Brown Jackson was referencing in her comment.

The current TikTok debate involves the issue of the First Amendment’s right to receive information versus the national interest in preventing China from accessing private data from 170 million American users and preventing China from influencing their political, economic and social beliefs.

Perhaps, in the Murthy v. Missouri case, where the government sought to suppress information on the 2020 election, origins of COVID-19, and the efficacy of vaccines and masks, the Supreme Court will clarify what standard of review is appropriate in prior restraint First Amendment cases. One thing is certain: First Amendment rights are not absolute. Protection of the vital national interest is the highest power of government.

— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Holland Sentinel: James Pfister: First Amendment versus national interest