Backgrounder: Supreme Court to Hear Oral Argument in Murthy v. Missouri

On Monday, March 18, the United States Supreme Court will hear oral argument in Murthy v. Missouri. The three questions before the Court are the following:

1. Whether the respondents in the case – the states of Missouri and Louisiana and five individual plaintiffs – have Article III standing;
2. Whether the US government’s conduct transformed private social media companies’ content moderation decisions into state action in violation of the respondents’ First Amendment rights;
3. Whether the terms and breadth of a preliminary injunction issued by a lower court were appropriate.

In their review, the justices will examine whether the government coerced social media platforms to “censor and suppress” disfavored speakers and viewpoints by threatening retaliatory action. The crux of the case, however, centers around the Court’s potential willingness to determine the government’s ability to engage with social media companies on matters of public concern on the basis of questionable underlying evidence. The Court will decide Murthy v. Missouri against the backdrop of a politically-motivated campaign waged by far-right conservatives to intimidate independent researchers and other institutions that lower courts have indulged and legitimized.

Below, Tech Policy Press provides an overview of the historical and political context that gave rise to the initial lawsuit, the case’s journey to the Supreme Court, and the key issues that the Court will consider in its review.

Historical context

While many Americans grew fatigued with the Trump administration’s incoherent – and at times, seemingly negligent – response to the COVID-19 pandemic, a political maelstrom was forming around the results of the 2020 US presidential election. A group of insurrectionists, emboldened by then-President Donald Trump’s election denialism, stormed the nation’s Capitol on Jan. 6, 2021, to prevent Congress from certifying Joe Biden’s victory. And near the center of these flash points were the social media companies, whose platforms were not only being used to spread misleading information that jeopardized trust in public health and elections, but also to connect users with conspiracy theories and violent political movements.

The newly elected Biden administration hoped to steer the US onto a different path, one that took seriously the threats posed by the COVID-19 pandemic. In July 2021, US Surgeon General Vivek Murthy issued an advisory declaring health misinformation around COVID-19 a threat to public health. In response to the advisory, President Biden told reporters that “the only pandemic we have is among the unvaccinated.” And when asked if he had a message for platforms like Facebook, where misleading information around COVID-19 vaccines was rapidly proliferating, Biden responded, “They’re killing people.”

Behind the scenes, various representatives of the Biden administration and federal agencies – including in the White House, the Office of the Surgeon General, the Federal Bureau of Investigations (FBI), the Centers for Disease Control (CDC), and others – were also communicating directly with executives at these platforms. It is the nature of these communications, and whether officials violated the First Amendment in their efforts to influence social media companies’ content moderation decisions, that is under consideration in the Court.

The timeline of the case

• May 5, 2022 - The States of Missouri and Louisiana file a complaint with the US District Court for the Western District of Louisiana against President Joe Biden, several federal agencies, and government officials (Missouri v. Biden).
• July 4, 2023 - The district court grants a partial preliminary injunction.
• Aug. 2, 2022 - Plaintiffs file an amended complaint with the district court, which adds five new individual plaintiffs and several new federal defendants to the case as well as an additional claim and request for relief. It also presents the court with new allegations.
• Sept. 8, 2023 - The Fifth Circuit Court of Appeals issues a modified preliminary injunction.
• Sept. 14, 2023 – US Surgeon General Vivek Murthy files for a stay with the US Supreme Court regarding the preliminary injunction.
• Oct. 3, 2023 - The Fifth Circuit issues a newly modified preliminary injunction.
• Oct. 6, 2022 - Plaintiffs file a second amended complaint with the district court.
• Oct. 23, 2023 - The US Supreme Court stays the preliminary injunction.

In the US District Court for the Western District of Louisiana, the States of Missouri and Louisiana filed a lawsuit (Missouri v. Biden) against President Joe Biden, several federal agencies, and government officials on May 5, 2022. The initial complaint alleged that the Biden administration engaged in a coordinated campaign during the COVID-19 pandemic to remove content and suppress disfavored views in violation of the First Amendment. These actions, the suit alleges, gave rise to “open and explicit censorship programs,” where the Biden administration colluded with social media companies to suppress speech under the guise of halting dis- and misinformation.

An immediate goal of the suit was to cut communications off between the government and the social media platforms. As misleading COVID-19 information and vaccine hesitancy proliferated on social media, senior Biden administration officials were in frequent contact with executives at major social media companies like Facebook. The plaintiffs’ initial complaint and later filings in the case frame this open line of communication as overt government strong-arming, where social media executives increasingly “appeased” the White House’s never-ending barrage of takedown requests. Yet much of the cited evidence shows government officials primarily urging social media companies to enforce their own content moderation policies.

The states’ wishes were granted when a partial preliminary injunction was issued on July 4, 2023. District Court Judge Terry A. Doughty argued the plaintiffs were likely to succeed “in establishing that the Government has used its power to silence the opposition.” The decision cut off nearly all communications between government officials and social media companies, with vague exceptions for national security threats, illegal election activity, and other criminal activity. The injunction also allowed for “permissible public government speech promoting government policies or views on matters of public concern” – or the very speech that the Court has yet to clarify.

The injunction also included restrictions on the government’s communications with certain independent researchers, barring it from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group.”​​ These same groups have been on the receiving end of Rep. Jim Jordan’s (R-OH) relentless assault on academic and civil society researchers. Stanford University filed an amicus brief with the Supreme Court in December 2023 in support of the US government, and recently published a fact check of claims about its research. (Note: Renée DiResta, research manager at the Stanford Internet Observatory, is on the board of Tech Policy Press.)

The chilling effect was nearly instant. For instance, Meta’s quarterly “Adversarial Threat Report,” published last November, all but confirmed that the district court’s July order had an immediate impact on the federal government’s communications with social media companies. Prior to the 2020 elections, for instance, Meta says it used a tip it received from US law enforcement to investigate and take down covert influence operations from Iran, Mexico, and Russia. According to the November threat report, this type of information sharing is particularly critical to disrupting “malicious foreign campaigns” whose operations are coordinated outside of its platforms. “While information exchange continues with experts across our industry and civil society, threat sharing by the federal government in the US related to foreign election interference has been paused since July,” it reads.

In September 2023, the Fifth Circuit US Court of Appeals narrowed the preliminary injunction, throwing out nine of its ten prohibitions. The decision dropped NIAID, CISA, and State Department officials from the district court’s injunction while upholding the central premise that the Administration's actions had violated the plaintiffs’ First Amendment rights. The Fifth Circuit also reversed the district court’s decision to bar government communications with the coalition of researchers. It did, however, expand the language for the remaining prohibition, which barred government actions that “significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”

Surgeon General Vivek Murthy later petitioned for a stay of the district court’s injunction with the Supreme Court, and the case was renamed Murthy v. Missouri. A further modified version of the injunction was issued by the Fifth Circuit on Oct. 3, 2023.

On Oct. 20, 2023, the US Supreme Court, in response to the petition from Surgeon General Murthy, granted a stay to the district court’s preliminary injunction, lifting all restrictions on communications between administration officials and social media companies. The Court agreed to hear the case in its spring 2024 term.

Congressional weaponization

Meanwhile, as Missouri v. Biden made its way through the courts, Freedom Caucus founder Rep. Jordan was promoting the baseless idea that certain researchers, social media company officials, and Democratic operatives were conspiring to censor conservatives. In January 2023, the House Judiciary Select Subcommittee on the Weaponization of the Federal Government was formed, which purports to investigate alleged abuses between federal agencies and big tech companies. In exchange for supporting his speakership bid, then-House Speaker Rep. Kevin McCarthy (R-CA) tapped Rep. Jordan as chairman.

The subcommittee made no pretenses of its far-right political motivations and willingness to amplify conspiracy theories. On Feb. 9, 2023, it held its first public hearing on “the politicization of the FBI and DOJ and attacks on American civil liberties.” Its second hearing centered around the so-called “Twitter Files,” or as Elon Musk framed it, “a revolution against online censorship.” (Musk, who had just recently purchased Twitter, gave a small number of people access to internal documents that, in their selective release, showed former executives engaging with politicians and federal agencies on issues like COVID-19 and election disinformation.) A third hearing honed in on Missouri v. Biden, featuring witness testimony from the two plaintiffs in the case. Missouri Sen. Eric Schmitt, who filed the lawsuit during his tenure as attorney general, left the subcommittee hearing before he could be questioned by Democrats, according to the Missouri Independent.

The Supreme Court’s review: Is this really a case of jawboning?

With oral arguments less than a week away, questions abound on how the justices will characterize the government’s communications with social media companies. The case has attracted attention from a wide range of institutions and individuals who filed amicus curiae briefs with the court over the past few months, arguing for and against the government’s ability to engage with the platforms.

The American Academy of Pediatrics, the American Medical Association, and other medical professional associations filed a brief arguing that the government has a “compelling interest” in combating vaccine misinformation. Eight secretaries of state, all of whom administer elections and are “at the forefront of efforts to counteract election misinformation, including by engaging directly with social media companies,” filed a separate brief arguing that the outcome of this case could chill state officials’ future efforts to disseminate accurate information.

In contrast, the Copia Institute, a think tank associated with the blog Techdirt.com, filed a brief on behalf of the interests of social media platforms that will be directly affected by the outcome of Murthy v. Missouri. The brief argues that by cutting platform providers off from communication with their own government, it implicates their expressive rights and the right to petition the government, and surrenders those rights to the control of states that wish to control online expression. US Senator Mark Warner (D-VA), Chairman of the Senate Intelligence Committee, filed a brief arguing that “foreign malign influence campaigns” using popular social media platforms are a national security issue, and the US will be vulnerable to attack if the Fifth Circuit’s preliminary injunction remains in place.

The main debate in the case is whether the government's actions are a textbook example of “jawboning,” or informal government efforts to pressure private social media companies into limiting or removing speech on their platforms. (The phrase is derived from a line in the Old Testament that refers to Samson slaying a thousand Philistines with the jawbone of an ass.) But legally, the question still centers on whether the governments’ messages to social media companies meet the legal threshold for state coercion.

Some see the government’s actions as “significant encouragement,” a claim the plaintiffs allege in the underlying suit and a framing that the Fifth Circuit agreed with in its injunction. The relevant legal analysis on ‘encouragement’ is articulated in Blum v. Yaretsky, where the Supreme Court decided roughly forty years ago that the government can be held responsible for a private decision when it has exercised coercive power or provided significant encouragement to private actors.

However, others have suggested that the government was persuasive, as opposed to threatening or coercive. In a recent piece for Tech Policy Press, reporting fellow Dean Jackson writes that, “elected officials must be able to speak persuasively to the public for democracy to function, and the government’s authority and democratic legitimacy give it a unique role in persuading powerful private entities to act for the public good.” Similarly, in its December amicus brief filed with the Supreme Court, the Knight First Amendment Institute asks the justices to evaluate claims of unconstitutional jawboning under the coercion test from Bantam Books, Inc. v. Sullivan, rather than the state-action test from Blum that satisfied the lower courts.

In the Bantam opinion, issued six decades ago, the Court barred the government from coercing private speech intermediaries into suppressing disfavored speech while also implying that the First Amendment permits the government to attempt to persuade private actors. Knight argues that the Bantam test “​​is the correct way to analyze jawboning claims because it best accounts for the multiple First Amendment interests at stake.” These interests include “(a) the interest of intermediaries and their users in communicating and associating free from government coercion; (b) the interest of the public in having and in hearing from a government empowered to attempt to shape public opinion through persuasion; and (c) the interest of the public in preventing the government from circumventing constitutional limits by acting informally or surreptitiously.”

The US government makes a similar distinction between persuasive versus threatening language in its most recent reply brief filed with the Supreme Court, challenging claims that “threats” were made to social media companies. The government also argues that the respondents’ underlying evidence was replete with cherry-picked evidence and claims contradictory to the facts they presented.

In one instance, respondents assert that former White House Press Secretary Jen Psaki made a “threat of ‘legal consequences’ if platforms do not censor misinformation more aggressively.” But the reply brief points out that Psaki never made threats of legal consequences during the public press briefing, which the government previously pointed out to the lower courts. While Psaki did respond to a Senator’s comment on “Big Tech oligarchs,” asserting that the President “supports better privacy protections and a robust antitrust program,” the brief argues that this “response cannot plausibly be characterized as a threat of adverse action.”

The government also pointed out that respondents were “doubly wrong” when they argued that platforms "responded with ‘total compliance’ after purported ‘threats’" from the government in July 2021. “The platforms continued to choose not to remove content flagged by the White House, including the very next day,” the reply brief reads. These purported “threats” were rather a series of public statements made by President Biden, Psaki, and Murthy criticizing the platforms, the government asserted. “The President and his senior aides are entitled to speak out on such matters of pressing public concern, and the President’s strong language does not transform his use of the bully pulpit into impermissible coercion.”

While these considerations are currently before the Supreme Court, some view this as a matter better solved by Congress. In a December House hearing on the role of the Department of Homeland Security and the Cybersecurity and Infrastructure Security Agency in securing AI, former Director of the Stanford Internet Observatory, Alex Stamos, talked about the appropriate role of the government in protecting election security. “Instead of this being a five-year fight in the courts, I think Congress needs to act and say, these are the things that the government is not allowed to say, this is what the administration cannot do with social media companies,” he said. Stamos argued that “only Congress has the ability” to help social media companies stop foreign interference.

For now, it will ultimately be up to the justices to determine if the communications under consideration between social media companies and the Biden administration are representative of coercive power or merely a ‘highly cooperative entanglement.’ Determining the boundaries of communications between the federal government and powerful technology platforms is a legitimate and important undertaking. But doing so in good faith will require the Supreme Court to look closely at the merits (or lack thereof) of the underlying evidence.