The Supreme Court’s decision to hear a case involving free speech, government agencies, and social media could have monumental implications for content moderation.
The court said last Friday that it would consider the merits of Murthy v. Missouri (formerly known as Missouri v. Biden), a case initially brought by the Republican attorneys general of Missouri and Louisiana. The two state attorneys general contended that Biden administration officials violated the First Amendment by colluding with Meta, Twitter (now known as X), and YouTube to engage in censorship, including posts about COVID-19 and the Hunter Biden laptop story. A preliminary injunction from the Southern District of Louisiana froze communications between Big Tech companies and the government, although the Supreme Court stayed the injunction while it considered the arguments.
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Now the Supreme Court is committed, sometime this term, to hearing oral arguments regarding whether government communications with social media led to censorship and whether the breadth and terms of the district court’s order were proper.
A Supreme Court decision in the case could set a major precedent concerning social media. Under existing jurisprudence, federal agencies are barred from forcing others to restrict speech by the First Amendment. But the legal questions around how much input can a federal agency over a social platform like Facebook or X are less clear.
Murthy is a “really important case at this moment because we’re trying to balance the level of input government can have in the content moderation policies and practices of privately owned companies,” Kevin Goldberg, First Amendment specialist at the Freedom Forum, told the Washington Examiner. Freedom Forum is a nonpartisan group promoting free speech.
Companies have a right to be free from undue influence from government agencies, Goldberg said. At the same time, private companies and federal agencies will inevitably regularly speak with one another about matters, which means that federal agencies may influence the decisions made by leaders in the companies. What remains gray is what sorts of speech would be considered coercive or forcing the opinions of the federal agency upon the company.
This coercion is considered “jawboning,” a practice in which a government employee encourages, coerces, or compels another party to comply with a request without using their respective legislative, judicial, or regulatory powers. Jawboning is a broad term used to describe a multitude of practices. It could describe reminders to a private entity about the state of the law, or it could be explicit threats stating that the speaker will take legal action if a specific book or piece of media isn’t censored.
“The First Amendment has long been understood to prohibit the government from coercing bookstores and other speech intermediaries to suppress speech, but the Supreme Court hasn’t had to apply this rule in the context of social media,” Jameel Jeffers, the executive director of the Knight First Amendment Institute, said in a statement. “Even outside that context, it’s said very little about how lower courts should distinguish permissible persuasion from unconstitutional coercion.”
One case that could offer insight into how the Supreme Court will rule is Bantam Books v. Sullivan, University of Chicago law professor Genevieve Lakier argued in a blog post. The 1963 case involved four book publishers that challenged the Rhode Island Commission over its habits of censoring reportedly “obscene speech” in privately owned bookshops. The court ruled that informal communications between government entities and private speech intermediaries like bookstores are fine as long as they are “purely advisory” and not “coercive in purport.” The Supreme Court would have to determine if those terms also apply to communications with social media companies.
Louisiana-based U.S. District Judge Terry Doughty issued the initial order in July limiting the federal government’s communications with social media companies after the plaintiffs provided sufficient evidence of a “massive effort” from the White House and federal agencies to “suppress speech based on its content.” The subsequent 5th U.S. Circuit Court of Appeals ruling by a three-judge panel on Sept. 11 agreed with the decision. However, it narrowed the number of government-affiliated entities affected by the decision. The Supreme Court decided to block the order on Friday and allow the agencies to communicate while it considered the legitimacy of the decision.
The fact that the trial court and the appeals court appeared to find the Biden administration guilty of “unlawfully coercing Big Tech” should be “shocking,” according to Dan Schneider, vice president of Free Speech America, a conservative organization.
“In no way does [Murthy] let Big Tech out of the noose,” Schneider told the Washington Examiner. It merely delays the inevitable regulatory actions necessary, such as the regulations proposed by Congress to change whether or not Big Tech can be held accountable for limiting political speech, Schneider argued.
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Legal experts anticipate the conservative majority on the court to uphold the initial order restricting jawboning, particularly in light of Alito’s dissent regarding the temporary blocking of the lawsuit. Alito argued in his dissent that the high court erred in lifting the limitations on Biden administration officials’ communications with social media platforms because the restrictions only applied to coercive speech.
The court is expected to hear arguments for Murthy this term, ending in June. It will be the third social media-related case accepted this term. The court will hear oral arguments next week over two issues regarding whether public officials can block critics on social media. It will also hear NetChoice v. Moody, a case that will determine whether a state can penalize a social media platform for its content moderation decisions.
