The U.S. Supreme Court is set to hear arguments on Monday regarding the government’s ability to convince social media companies to remove content from their platforms.
The Biden administration sought the intervention of the country’s highest court following a decision made by the U.S. 5th Circuit Court of Appeals in September. The ruling stated that Surgeon General Vivek Murthy, the White House, the FBI, and the Centers for Disease Control and Prevention had infringed upon the First Amendment by exerting influence over social media companies in their moderation of content related to COVID-19 and the 2020 election.
Over 50 individuals and organizations have submitted legal briefs to the U.S. Supreme Court for the case of Murthy v. Missouri, previously referred to as Missouri v. Biden.
In July of last year, Judge Terry Doughty of the U.S. District Court made a ruling against the Biden administration. The ruling granted an injunction that had been requested by Republican Missouri Attorney General Andrew Bailey. The injunction aimed to halt certain actions and interactions between nine government agencies, their leaders and employees, and social media companies. The original case had been filed by Eric Schmitt, who was the Missouri Attorney General at the time but is now a U.S. Senator. After Schmitt’s election in 2022, Bailey, who had previously served as the chief counsel for Republican Governor Mike Parson, was appointed by Parson.
The U.S. Supreme Court has agreed to consider the government’s appeal regarding the question of whether the actions taken by the government have turned private social-media companies’ content moderation decisions into state action, potentially violating the First Amendment.
In its brief, the government disagreed with the notion that government officials become state actors and are therefore subject to First Amendment constraints simply by speaking to the public on matters of public concern or attempting to influence the editorial decisions of private platforms. The government argued against such a radical expansion of the state-action doctrine, stating that it would undermine the rights of private entities to exercise editorial control over speech and speakers on their properties or platforms.
Missouri’s brief emphasizes the extensive compilation of factual findings, supported by 591 footnotes, as outlined in the district court’s ruling against the government.
The brief asserts that the findings, which have not been challenged, provide evidence of a comprehensive effort to compel social media companies to suppress speakers, viewpoints, and content that the government does not favor.
Eight briefs did not express support for either side, including one filed jointly by Netchoice, the Computer & Communications Industry Association, Chamber of Progress, and the Cato Institute. This brief focused on the concept of “jawboning,” which the Cato Institute defines as when a government official uses their power to threaten and compel individuals to take specific actions that the official themselves cannot enforce through prosecution, regulation, or legislation.
According to the brief, it is crucial for the Court to ensure that its decision does not enable the government to undermine the rights of digital services to curate and distribute content indirectly, when it cannot do so directly. The brief further emphasizes the need for the Court to clarify that a jawboning claim against the government does not require a showing of state action as a prerequisite.
The brief also requested the court to clarify that any lawsuits pertaining to “jawboning” should be directed towards the government, rather than the social media platform, in order to maintain consistency with legal precedent.
