Ben Sperry on Murthy v Missouri

ICLE Senior Scholar Ben Sperry was quoted by the New York Sun in a story about the pending U.S. Supreme Court free-speech case Murthy v. Missouri. You can read full piece here.

What’s “insidious” and “devious” about the censorship under scrutiny in Missouri is that “it’s not even true regulation. It’s not like they passed a law through the legislature to do this,” a senior scholar at the International Center for Law & Economics, Ben Sperry, tells the Sun. “They were simply doing backroom things to get a result that they could have never done constitutionally.”

Pressure is mounting to end state–sponsored digital censorship. Mr. Sperry’s ICLE joins a host of law centers that have filed amicus briefs in Missouri through the Fifth Circuit Court of Appeals and the Supreme Court after it agreed to hear the case. Later this month, the court will hear arguments in a pair of cases challenging Texas and Florida laws that restrict social media companies from moderating their content.

…Social media companies are private actors that are free to exercise editorial discretion, ICLE argues — as long as it’s free from government meddling. “Social media companies have a right to editorial discretion,” Mr. Sperry says, “because their users don’t want to see certain speech, even if it’s lawful. As a private entity, they have a right to balance those speech interests to maximize user engagement.”

When the government intervenes, it disrupts the marketplace of ideas and undercuts consumer engagement, Mr. Sperry argues. Speaking on behalf of ICLE, he says, “we believe markets are better at serving consumers than governments. They have more information, so to speak, as entrepreneurs acting in the marketplace, than government officials and regulators do.”

The government could defend itself by arguing that it coordinates with social media companies to take down content deemed harmful in the interest of national security. “But there’s a big difference,” Mr. Sperry says, “between persuading through the bully pulpit and coercing.” It will likely be difficult for the conservative supermajority in the Supreme Court to dismiss the evidence as a sort of tinfoil hat conspiracy against the government.