Podcast: What's at Stake in Murthy v Missouri?

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On March 18, the US Supreme Court will hear oral argument in Murthy v Missouri, a case that asks the justices to consider whether the government coerced or “significantly encouraged” social media executives to remove disfavored speech in violation of the First Amendment during the COVID-19 pandemic.

Tech Policy Press reporting fellow Dean Jackson speaks to experts including the Knight First Amendment Institute at Columbia University's Mayze Teitler and Jennifer Jones, and the Tech Justice Law Project's Meetali Jain.

What follows is a lightly edited transcript of the discussion.

Dean Jackson:

On July 4th, 2023, a federal judge in Louisiana issued a surprise ruling. He held that the federal government, and especially the Biden administration, the surgeon general, the CDC, and the FBI, had unconstitutionally coerced social media platforms into removing posts during the 2020 election and the COVID-19 pandemic, in violation of the First Amendment. This type of government coercion against speech intermediaries, whether they're a local bookstore or a trillion-dollar internet company, has historically been referred to as jawboning.

In his ruling, Judge Terry Doughty forbade large portions of the federal government from interfacing with social media companies. Moreover, he placed similar restrictions on independent researchers who monitor the platform for rumors related to the election and the pandemic.

The Fifth Circuit Court of Appeals later vacated Judge Doughty's injunction against the researchers, while leaving in place significant restrictions on the government. In its ruling, the Fifth Circuit drew heavily from narratives about government censorship covered by the Twitter Files and the House Subcommittee on the Weaponization of the Federal Government, narratives that critics allege are mostly conspiracy theories advanced for political gain.

The case, Murthy V. Missouri, will be heard by the Supreme Court this term. Critics warned that if the Fifth Circuit ruling is upheld, the government's ability to advise the platforms on a range of issues, from national security to election integrity and public health, could be severely impaired.

Some observers, though, recall the Trump administration's effort to punish social media companies for their policies during the protests following George Floyd's murder, and fear future administrations could wield the jawbone.

With me today to discuss this case and its legal background are Mayze Teitler and Jennifer Jones from the Knight First Amendment Institute at Columbia University. Jen, Mayze, hello.

Jennifer Jones:

Hi there.

Mayze Teitler:

Hey, Dean. Thanks for having us.

Dean Jackson:

Thank you for joining. I wanted to start by asking you about the work you've been doing around this case and the constitutional questions it raises. Can you talk me through the case and its importance to First Amendment law?

Jennifer Jones:

This case is primarily about efforts the White House and federal agencies undertook during the COVID-19 pandemic to push the major social media platforms to suppress what the Biden administration believed to be dangerous misinformation about vaccines. Government officials repeatedly requested or demanded that the platforms take down this content, sometimes berating them or vaguely threatening regulatory reprisal if they didn't comply. In what is probably the most well-known example of government pressure identified in the case, at one point, President Biden told the press that the platforms were "killing people" by failing to suppress vaccine misinformation more aggressively.

At the heart of this case is this question of how the courts should distinguish legitimate government speech from illegitimate government coercion. There are two competing speech interests at play here. There's the plaintiffs, whose posts the platform suppressed, arguing that the government's pressure campaign was a form of censorship and that it was particularly troubling because of the informal approach that the government took. Those types of communications, they argue, insulated the government's actions from the usual democratic checks.

The government, on the other hand, argues what is a free speech claim too, although the government doesn't have free speech rights in the same way that private actors do. The government is emphasizing that it has a legitimate role to play in persuading private actors to be attentive to the public interest, and that government speech is sometimes essential to informing autonomous decision-making by platforms and other private speech intermediaries. This is especially true, they argue, when the government has information that private decision-makers may not have, as is often the case with matters relating to public health.

So here the court is being asked to weigh in on how courts should distinguish legitimate government speech from illegitimate government coercion, and this clarification is really desperately needed because the court hasn't actually taken up this question in six decades now.

Mayze Teitler:

Maybe one other important piece of context is that this case, although it's been presented as primarily related to these COVID-related claims, it also implicates communications about materials that had to do with the FBI's efforts to share information with the platforms and the lead up to elections about potential misinformation campaigns, as well as efforts by the FBI to identify inaccurate information about the time, place, and manner of elections, things like incorrect poll hours or mail-in voting procedures, and also some more anodyne or just odd things, like this account that purported to be a member of the Biden family that may or may not have been a parodied account. So we're really talking about a wide range of potential communications here.

Dean Jackson:

I want to dig into the specifics a little because they really matter in every case, but especially this one. First I want to ask if you have any other examples of this alleged acts of government jawboning that occurred here. You referenced that the Biden press conference is the most infamous one, but in some ways it strikes me as not the most troubling because it was public, and there are all these examples of private communications that are also cited. We'll get into why public versus private matters, but maybe it would help to display the stakes a little bit if you could put a couple of others examples on the table.

Mayze Teitler:

So some of the communications that are at issue here are, for instance, meetings that the CDC had with various platforms, offering its opinion on whether certain COVID-related claims were true or not. We also, like I said, have these examples of the FBI identifying disinformation about the time, place, and manner of elections in various states.

In addition to that, we have some communications between the White House and the platforms about their content moderation policies. So asking for more information, for instance, on how the platforms dealt with borderline content, content that almost violated their terms of service but did not.

There are also some communications from the White House that seem unrelated to content moderation. So one that stuck out to me is a communication between a White House official and a Facebook employee about technical issues that were affecting the @POTUS account, sort of technical issues of audience growth that they were not really satisfied with the Facebook answers, and so another White House official jumps in and says, "I want answers on what happened here and I want them today." But it wasn't actually, if you look at the communication, about content moderation. It was about issues with the @POTUS account. So a real range.

Dean Jackson:

Similarly, the specifics on the legal questions matter, too. You wrote an excellent and very helpful amicus brief in this case. In it, you walk through some of the legal precedents. You talk about the Bantam Books case, you talk about the Blum case, the difference between them, why you prefer one to the other as the test to use here.

I really like the Bantam Books case because to me it's intuitive. I think people will understand, if you go through the history of that case, what jawboning looks like in practice and what it's looked like in history.

Mayze Teitler:

Absolutely. I can kick us off with the discussion of Bantam, and then my colleague Jennifer can share a little bit about Blum. So as you correctly said, Dean, the most recent Supreme Court decision that's on all fours on this jawboning issue is a case from 1963, Bantam Books v. Sullivan.

That case involved a challenge to the actions of the state commission that was created to protect minors from obscene or offensive materials. That commission sent notices to book distributors that threatened prosecution unless they pulled specific books and magazines out of circulation. The commission followed up on those letters by sending local police officers to the booksellers to make sure that they were in compliance with the request.

Perhaps unsurprisingly, the distributors refused to fill any new orders for the materials that the commission thought were unfit for minors, and sent field workers to remove unsold books from the retailers' shelves.

So when the Supreme Court considered that challenge, it held that the commission's actions together constituted a scheme of informal censorship that violated the First Amendment, mostly because they were intended to intimidate book distributors and retailers with this threat of criminal prosecution, and they resulted in this goal of suppressing those publications, making them a prior restraint that suppressed the sale of the books.

Something that is interesting about Bantam is that the court in that case also acknowledged that there might be some situations in which the government has a legitimate interest in communicating with intermediaries. So the court noted that consultation that's genuinely undertaken to aid an intermediary in determining how to comply with the law is okay. It also noted that Bantam was not like an even earlier case where the government had these communications that were purely advisory and non-coercive.

Later cases from lower courts interpreting Bantam have read this case to stand for this principle that coercion by the government is impermissible and, therefore, a First Amendment violation, while persuasion is permissible activity on behalf of the government. So the government, when it's speaking for itself, can adopt viewpoints and reject viewpoints. It isn't required to remain viewpoint-neutral. That also implicates the public's interest in hearing from the government and hearing what the government has to say to intermediaries, including speech intermediaries like platforms, so that the public can then weigh in debate or by voting any kind of opposition to the government's policies.

But what's hard about applying Bantam to the facts of Murthy is that it emerged in a really different factual context, and the court really hasn't had any occasion to revisit the questions that it raises in the interim. So I think the court will really be struggling here with where is this line between persuasion and coercion and what should courts consider when drawing that line?

Jennifer Jones:

Importantly, another case that's implicated in Murthy is Blum versus Yaretsky. This is a 1982 Supreme Court case where a group of Medicaid recipients claimed that their due process rights were violated when private nursing homes discharged or transferred them to a different level of care without notice or a hearing. Because there were federal regulations that encouraged the nursing homes to discharge or transfer Medicaid patients whenever possible to cut costs, the plaintiffs argued that that decision to move them to a different level of care was attributable to the government and, therefore, was state action and subject to constitutional review.

So Blum is a case about when the government can be held liable for the actions of a private entity, and the test articulated in that case asks whether the government has exercised coercive power or has provided such significant encouragement that the choice in law must be deemed to be that the state.

Its test overlaps somewhat with the First Amendment test from Bantam that Mayze just mentioned because both tests contemplate government liability for coercing private actors, but it is a general test for state action that applies to any claim seeking to hold government actors liable for the conduct of a private entity. But, again, it's not a First Amendment-specific test, which brings us to the questions that this case raises in the jawboning context specifically.

I think the main questions that this case raises are, one, should this test even be applied to cases like Murthy where the allegation is that the government jawboned the social media platform into making a particular content moderation decision? If so, what is the correct interpretation of the test?

In the amicus brief that we follow up with the Supreme Court, we argue that it's not the correct test for these types of controversies, in part because a court's finding that a platform's decision reflects state action means that both the government and the platform may be held liable for violating the Constitution.

Just to clarify, the plaintiffs in Murthy are not seeking a remedy against the platforms themselves. They're only suing government officials. But a broader consequence of the court saying that this test applies in similar cases involving platforms and their content moderation decisions is that it could really significantly expand the liability of the platforms to First Amendment requirements that ordinarily only apply to the government.

This is especially troubling when you consider that social media platforms have a First Amendment right to make editorial decisions about the content they publish on their platforms. And so, this threat of expanded liability undermines that right.

There's also this question of how to interpret the test, particularly the meaning of such significant encouragement. Again, the test asks whether the state has exercised coercive power or has provided such significant encouragement that the choice in law is that of the state.

I don't think there's much disagreement about what coercion means, but there definitely is a question of whether significant encouragement means this close nexus between the government and the platforms where the platforms are working with the government in some way to enforce their content moderation policies, or there's a question of if it should be interpreted as another form of the state's coercive power where it doesn't necessarily threaten the platform with negative consequences if it doesn't comply, but instead maybe overwhelms the platform with positive inducements to achieve the same results.

This is another question that the court will have to weigh in on with respect to the application of Blum. Our position at the institute is that if the goal of jawboning doctrine is to deter the government from coercing or incentivizing the platforms to make editorial decisions according to the government's own preferences, Bantam Books provides a framework that keeps the focus where it should be, which is on the government's coercive actions without resorting to Blum.

Dean Jackson:

The forums aren't the only third parties implicated here. There's also this question of a group of academic researchers who were named in a previous injunction, which has since of course been vacated, but they're still caught up in this case. There are other lawsuits against them. The continuing political fallout from the case has challenged their work. How does the state action question affect them?

Jennifer Jones:

We know that the third parties, university researchers, frequently work with government officials on these partnerships to address really important issues like information sharing between and among the federal, state, and local governments to protect election integrity. The overall effect of the state action doctrine, if it's allowed to persist and be applied to these types of cases, is that it would really impair the ability of the government to work collaboratively with those third-party researchers and with social media platforms to protect elections against disinformation and voter suppression efforts, which of course would be really concerning.

Mayze Teitler:

Maybe I'll just also add the original injunction that was in place before this appeal to the Fifth Circuit limited the government from collaborating with some of those independent researchers. Several of them have weighed in as amici at the pre-stage, highlighting that rule that prevented them from communicating with the government might hinder their own, probably does hinder their own, speech rights to carry out that research to effectively advocate for the government to adopt their research findings, and just generally would really limit a lot of the scope of work that they can do in collaboration and learning from the experiences of members of government.

Dean Jackson:

I want to go back to something, Jennifer, that you said at the very top, which was that government also has a right to speak. Maybe not in the same way that you or I have, but there is a question of how this affects government speech, and, of course, that government speech includes both efforts to communicate about policy to private actors, to clarify questions of law and regulation, but also to share its use with the voting public.

A viewpoint-neutral government would beg the question of why have elections? The government, of course, needs to have a viewpoint about what law should be and how it should be used. To vote as a citizen, I need to know what that viewpoint is.

How do courts currently distinguish between inappropriate acts of jawboning and then permissible forms of government speech which might be persuasion currently? Is there any other way to wade through all that nuance?

Jennifer Jones:

So as things stand right now, the lower courts haven't really coalesced around a principled interpretation of Bantam Books and where to draw that line. But it has generally been understood, as we mentioned, to draw a distinction between government persuasion or government speech, which the First Amendment permits, and government coercion, which it prescribes.

I think the two circuits that have recognized the necessary comprehensiveness of the coercion inquiry are the Second and Ninth Circuits. Both of those circuits have adopted a non-exclusive four-factor framework that examines things like word choice and tone. So was the government being overly aggressive in their communications with the target? Another factor is how the recipient understood the communication, whether they perceived the communication from the government as a threat.

They also look at the presence or absence of regulatory authority. That factors recognizes the fact that government pressure is a lot more likely to be coercive when it's coming from an official that's in a position to actually retaliate through the exercise of their official responsibilities. Then, finally, they look at whether the government referred either explicitly or implicitly to adverse consequences for noncompliance, because that, of course, would suggest an attempt to coerce rather than to persuade.

We at the Knight Institute think that consideration of these factors is definitely on the right track. But in an amicus brief we filed with the court, we argued that there are other factors that are relevant here as well. One of those is whether the government communicated privately or publicly, whether the speech intermediary was especially susceptible or resistant to coercion, whether the communications involved factual statements without coercive force that might just be useful to the platform's decision-making, and whether the government actors made threats that were related or unrelated to a removal request.

Again, that's on an exhaustive list, but those are additional factors that we think are relevant. Very importantly, we also encourage the court not just to look at these factors, but also to apply the test in the service of three constitutional interests. So it's not just enough to consider the factors that I mentioned, but also really important that the court think about the interests that are at stake here.

One of those obviously is the interest of the platforms and their users, and communicating and associating free from government coercion. But then there's also the interest of the public in having and in hearing from a government that is in power to attempt to shape public opinion through persuasion. That's one of the reasons why we elect government officials. Then, finally, we think the court should be attentive to the interests of the public in preventing the government from circumventing constitutional limits by acting informally or surreptitiously.

Dean Jackson:

Let's drill down into the facts of the case a little bit. How do these types of tests apply to the questions in Murthy? Specifically, I want to talk about the different actors named, the White House, the Surgeon General, Center for Disease Control, FBI. Those are some of the most significant and they're the ones for whom this injunction remains in place. How do the tests you described apply to some of these different government actors?

Mayze Teitler:

So as you alluded to before, in this case, the court is going to look at these communications between each of these agencies that the Fifth Circuit identified and try to determine whether the court below got it right, and whether the government's conduct transformed these private companies' content moderation decisions into state action and, therefore, violated the plaintiffs' First Amendment rights.

But I think something that's really important here is just to recognize how different the facts of this case are from Bantam, and for that reason why it's challenging to concisely answer the question you just posed.

So in Bantam, we're talking about a letter and follow up from the police. The court really drilled into the full context of both of those communications when reaching its First Amendment decision. Here, in contrast, we're dealing with allegations about hundreds of communications. One of the challenge in disposing of this case is that you need to look at the full context of each of those communications and understand them. That's a lot more onerous than the task the court took on in Bantam.

So just to offer maybe one example to illustrate what we're talking about, the CDC's communications advising on whether some COVID-related claims were true or false or misleading, if we're just going through the Bantam totality of circumstances analysis, you might look at the word choice and tone don't seem very threatening. The platforms seemingly undertook those communications on their own, and the CDC doesn't really have regulatory authority over large communications platforms.

So I think under an application of the Bantam test, you wouldn't really see those communications as concerning at all. That maybe stands in contrast with one of the other examples that's up in this case is this email chain between White House officials and Facebook, where the White House officials accused Facebook of hiding the ball and saying the platform wasn't trying to solve problems with content moderation in the platform. Then ultimately warning that the White House internally was considering options on what to do about Facebook being recalcitrant.

That potentially looks a little more coercive. The tone's a little more accusatory and demanding. The White House has a lot more authority potentially over the platforms. Also, it seems to allude this ... Internally, considering our options, seems to potentially allude to some kind of adverse consequences in a way that especially platform communications from the CDC don't.

And so, I think a really great version of a decision here would be a court that was really interested in digging into all of these communications and really looking at them. But again that's a much more difficult task here than it was in a more discreet case like Bantam.

Jennifer Jones:

Yeah, and I think something else that's important to highlight here is because courts haven't settled on Bantam as the correct test, the Fifth Circuit, in this case, also applied Blum. So if you look at the decision, again, looking at the CDC example, they found that the CDC likely violated the First Amendment by communicating with the platforms about COVID-19 misinformation.

The court notes that the platforms asked CDC officials to decide whether certain claims about COVID were misinformation, and the CDC officials responded by telling the platforms whether claims should be labeled true or false, misleading, or needed to be addressed by CDC-backed labels.

And so, when applying the Blum test, the court concluded that the CDC significantly encouraged the platform's moderation decisions and, therefore, attributed that decision-making about how to address COVID-19 misinformation to the state.

That just feels not quite right when you consider that the platforms really seem to have wanted to rely on the CDC for that information. We know that throughout the pandemic, many platforms independently develop policies related to COVID-19, and they affirmatively reached out to government agencies like the CDC about how to implement those policies.

If you think about it, it's hard to imagine another authority that the platforms should have or could have relied on in the midst of a global public health crisis. But, more importantly, as I mentioned earlier, the platforms have these editorial rights that are protected by the First Amendment. And so, seeking such guidance from the government is squarely within their free speech rights.

So the application of the Blum state action test, which effectively forbids the platforms from receiving government input in the way that I just described, actually violates the platform's First Amendment rights. So that just underscores why we're hopeful that the court will reconsider this circuit's ruling with respect to the application of this test.

Dean Jackson:

I want to ask a question about your amicus brief and zoom out a little bit. In the brief, you mentioned ... There's this phrase you used, which is the totality of context. You said earlier that all of these communication have to be considered in the context in which they were made.

Something I noticed that you don't touch on in that section of the brief, and I think we haven't stated bluntly enough yet, is the context in which these communications occurred, which was height of the COVID-19 pandemic, vaccines are just coming online, people are queuing up to get them. Others are not queuing up to get them because there's a high degree of vaccine skepticism, some of it inspired by content on social media.

The insurrection was only a few months before, so January 6th, and the problem of election denial and the big lie and the role that platforms played in allowing that narrative to spread also very much in the public discourse. A really difficult time for the country. Does that sort of social context matter to the case? It doesn't come through very strongly in many of the legal documents related to it, but it seems like it should be central to the conversation.

Jennifer Jones:

So I think that the broader social context here definitely makes the questions more difficult. Under the Bantam persuasion, coercion framework, you can imagine a world in which this context maybe weighs in favor of a finding of persuasion rather than coercion. The fact that there was an ongoing public health emergency and that there were ongoing attempts to undermine the 2020 election results could be seen to weigh in favor of persuasion rather than coercion.

It's not as if the Biden administration manufactured these crises. It inherited them, at least with respect to the COVID-19 crisis that had been going on for almost a year before President Biden took office. So part of the business of the government, of course, is to respond to that crisis. That was a major point of his campaign, was saying that he was going to address the public health crisis.

On the other hand, I think we should be skeptical about attempts to use crises to curtail civil liberties. We know that history, of course, is full of examples where emergencies have been invoked to justify government misconduct. Post-9/11, for example, there were countless people that had their constitutional rights stripped away, due process was rolled back, and surveillance became more entrenched in our daily lives in the name of national security.

So we do think that it's important that the court be attentive to the context in which a lot of the government communications here occurred, but we think that it can do that without crafting rules that curtail civil liberties in crisis situations.

Dean Jackson:

Yeah, that strikes me as very reasonable. I'm wondering if, for some of the tests you use to weigh persuasion versus coercion, for things like word choice and tone in particular, the word choice and tone that an official uses must be influenced in part by the gravity of the situation under discussion. It seems like, like you said, it must play some role even if it doesn't, of course, waive the First Amendment in practice.

Jennifer Jones:

Right.

Dean Jackson:

Let's talk about the factual record of the case a bit more and the actual context of those hundreds of communications. My understanding is that we each engage in a version of the same exercise where we went through the Fifth Circuit's ruling and tried to take dozens of little snippets and quotes and excerpts of communications between the federal government and social media platforms into context. We go back to source materials, take what might have just been, in some cases, four or five words of text and try to locate the email in which those originally occurred.

My takeaway from this is that the presentation of evidence does look slanted. There seems to have been some cherry-picking of examples from the emails that it's hard to get the full context of an email from just a few words, especially if you don't know who the email is from or to. Sometimes these were quite high-level people, including Nick Clegg at Meta, former Prime Minister of the United Kingdom. And sometimes there are also just basic misunderstandings about the way platform policy works.

The reply brief from the solicitor general, the government's reply, make some of these same points and go so far as calling some of the presentation of facts in the ruling unsupported and demonstrably wrong, providing some specific examples and alleging that some of those examples actually come from the plaintiffs' brief initially and have been corrected in the past, but allowed to stand uncorrected in the ruling.

So there's this very troubling question of whether or not the facts as presented are the facts as they really were. I wonder if your impression going through that exercise is similar at all to mine.

Mayze Teitler:

Sure. So I think the main impression that I got from undertaking that process is really twofold. The first is that this case really asks the court to treat a lot of different types of interactions as if they're all equally as concerning and as if they were carried out to create this deliberate government-wide pressure campaign.

Even putting aside issues with facts that have been disproven after the plaintiffs' initial briefing, I just don't know if it's fair to treat communications that came from different branches of government, different individuals directed at different platforms on different topics and different issue areas as part of this coherent scheme. I think that's particularly true where some of the instances, quotes taken from press conferences and public-facing communications, seem banal or even potentially socially beneficial, though there are others that fall closer to those lines.

But I think my first takeaway is that really it would be a mistake for the high court to fail to examine and contextualize the communications, really understand where did this quote come from? Are these two quotes coming from the same place? Are they related to each other?

I did feel like some of the filings were designed to make that difficult. So I think the initial set of documents attached to the plaintiffs' complaint was an exhibit that was over 800 pages long. So it's really inundating the court with this mountain of facts to sort over.

Then I think related to that is that Fifth Circuit sometimes is portraying the facts in a way that lacks specificity, particularly regarding context. If you look at the text of the opinion, it has some things we think of as hallmarks of close engagement with the record, like extensive quoting, stringing quotes together. As a reader, if you haven't looked at the record, you assume that those quotes are related to each other, directed at the same recipients. Your brain fills in the gaps. But when you look a little closer, they aren't always that closely related to each other.

And so, my hope here is that the court will look more closely, because I think presenting these facts so that a fulsome discussion of the context not only makes it hard for the reader to understand what's going on, but also makes it really hard for government officials at all levels to know what types of communications actually violate the First Amendment.

If we don't get clarity about which of the communications were actually problematic, officials might end up facing moral litigation or really struggle to provide platforms with important information even when the platforms themselves seek it out.

Dean Jackson:

So where is it that you hope this case will go? What would be a positive outcome and what would help give clarity to those government officials who are now wondering whose relationship to the platforms and ability to do parts of their jobs that are in limbo while this is sorted out?

Jennifer Jones:

I think a good outcome here would definitely be clarification of the coercion versus persuasion standard. Again, this test hasn't been revisited by the Supreme Court in 60 years, but there have been a lot of jawboning cases making their way through the courts recently, and all of them really illustrate that this clarity is sorely needed. Clarity around the interpretation or how to apply the tests would also provide much-needed guidance to government officials on what types of communications are permissible and which ones aren't. Ideally, that would leave space for beneficial communications and information sharing between the government and the platforms that I think most of us would agree is really good for society.

Dean Jackson:

So there's an academic read of this case, a chance to clarify longstanding issues in First Amendment jurisprudence and contextualize how government can and cannot respond to dangerous rumors during a national emergency. But the factual discrepancies in the First Amendment's account raise important questions about Murthy v. Missouri's origin story.

I turned to Meetali Jain, director of the Tech Justice Law Project, to help me understand the political dimensions of Murthy v. Missouri. What motivated the effort to put this case before the court and what consequences is it already having for researchers, the government, and other efforts to prevent online harms to the 2024 election? Hi, Meetali.

Meetali Jain:

Hi, Dean.

Dean Jackson:

Thanks for joining us today. I want to start by asking you a little bit about the way this case has been presented in the court and talked about in public. I'll start by referencing the reply brief from the government in Murthy v. Missouri, which was just very recently released as of this recording.

In that brief, they raised serious questions about the presentation of evidence in the Court of Appeals ruling. They're very similar questions to ones that we at Tech Policy Press have raised, and they reach pretty similar conclusions, which is that the ruling is based heavily on quotes taken out of context and misperceptions about how social media trust and safety works in practice.

So this raises to me a pretty serious foundational question as the case makes its way up to the Supreme Court, which is is there injury and fact here? Do the plaintiffs have standing to bring this case at all if the transgressions that are alleged never happened as described?

Meetali Jain:

Yeah, thanks for the question. I think it is quite fundamental, but I interpret it as two distinct questions. One is did the court get the facts right and, second, do plaintiffs have standing? I think that there's overlap there, but they are distinct.

On the first question, as your piece points out, as the solicitor general's reply brief points out, the factual foundation of this case is quite flimsy, and there's been a lot of taking at base value of representations made by the court from briefs and then injecting that into rulings. There's fundamentally a kind of acontextual lack of understanding about what it means in practice to achieve stated platform objectives around trust and safety.

And so, I guess a couple examples I'll use to illustrate that. First, I think that if you look at the Stanford amicus brief, the work of independent tech researchers, while they're not a party to the case, has been heavily attacked by plaintiffs here. That amicus brief points out very clearly that researchers are not government actors, they're not arms of the state, and that the district court in particular's findings of censorship rested on numerous factual errors about basic details.

A couple of examples to illustrate that. The election integrity project, it is claimed, was created at the request of CISA and/or DHS in order to bypass the First Amendment and launder censorship activities. This simply was just not the case. The EIP and virality project that were created to study election-related threats was created at the behest of Stanford Internet Observatory's former director Alex Stamos.

In another example that Stanford points out in its brief, the plaintiffs alleged that the election integrity project censored 22 million tweets and labeled them as misinformation. Again, this is misleading, because the 22 million figure is actually the total number of tweets that mentioned one of the 10 most viral narratives tracked by the EIP for the duration of the 2020 election cycle. It was only calculated after the election was complete. But the actual number of posts that the project flagged, as was stated in its report in 2021, was actually 4,784.

Dean Jackson:

Quite a small fraction.

Meetali Jain:

Quite a small fraction. Even though the Fifth Circuit later validated this argument and vacated the portions of the district court's injunction affecting the researchers, the chilling effect has impacted the ability of independent researchers to do their work and, in this case, has ignored the fact that researchers themselves are entitled to their own First Amendment protections.

So another example I think that illustrates the lack of understanding of how trust and safety works in practice is the way in which the Fifth Circuit appears to hold that any information sharing from the FBI to platforms is de facto coercive simply by virtue of who the FBI is. And so, even in situations where platforms actively solicit information from the government, as was routine in election security matters between platforms and the FBI, the resulting communications were assumed to be coercive because of the FBI's standing as a law enforcement entity.

In fact, Yoel Roth, the former head of trust and safety at Twitter, said that his experience while he was there was actually more aligned with that of FBI special agent Elvis Chan, whose deposition is in the record in this case. Chan described that in industry working group meetings with government, social media companies shared disinformation content, providing a strategic overview of the type of disinformation they were seeing. Then the FBI would provide strategic unclassified overviews of things they were seeing from Russian actors.

Across both bilateral meetings, that is between company and FBI and multilateral, multiple companies and multiple government agencies, in both kinds of meetings, the various public and private sector stakeholders voluntarily briefed each other on their efforts and, as appropriate, shared information about their findings and concerns.

And so, again, the Fifth Circuit's broad assertion of the FBI is inherently coercive just belies the actual reality of how these meetings occurred in practice. I think there's a couple of other instances, particularly in the Twitter Files, which themselves document at least two instances in which Twitter pushed back on the FBI's requests. And so, again, the notion that the FBI jawboned Twitter into compliance, it just doesn't speak to the reality of people involved in those efforts.

On the second question you asked about standing, I think there is a question about whether in fact the plaintiffs here actually suffer injury in fact. They alleged that specific pieces of content they posted online were censored through state action. But there's a mismatch, arguably, between the timing of when this so-called state action occurred vis-a-vis when the moderation of their content occurred. So that's one thing to note is just a timing problem.

But, secondly, the injunction is breathtakingly broad, covering all platforms, all agencies that are included in the injunction, all content, all topics, and any officials within those respective agencies. And so, that goes far beyond the plaintiff's particular claims here and suggests that the injunction here does not match any sort of claims that the specific plaintiffs have specifically asserted. So I think there are questions on both.

Dean Jackson:

I want to circle back to something you said about the chilling effect on researchers because the Coalition for Independent Technology Researchers' amicus brief is devoted almost entirely to this question. It makes an important point that I'd love to get your response to, which is that even though the injunction against the independent tech researchers, third-party private academics who were initially barred from communicating with government or platforms about content moderation, even though that was vacated, the First Amendment harms to them and their work continue vis-a-vis this chilling effect. Could you talk to me a little bit more about the fallout from that injunction?

Meetali Jain:

I think the chilling effects have been real and they've been devastating, and that is true across a number of spheres, researchers being obviously just one. Under the First Amendment, researchers themselves as private parties enjoy the freedom to study the political and social effects of digital technologies and to publish the results of their research. That is a feature of this case that has gotten little attention, again because the district court's injunction as to them, as you say, was vacated.

But the chilling effect has continued nevertheless. The strategy to entangle researchers in this political and legal strategy to claim censorship has been thorough, and the researchers, despite not being subject to the letter of the law, have still been pulled into Congress through subpoena to testify before congressional committees. They've been sued right, left, and center. In fact, two of the plaintiffs in this lawsuit, Jill Hines and Jim Hoft, also brought a parallel First Amendment lawsuit in the same district court against digital technology researchers, including members of the Election Integrity Partnership.

The State of Texas have sued the Department of State and others based on lists generated by private research entities that identified certain news media outlets as unreliable. X has recently sued the Center for Countering Digital Hate.

Unfortunately, these are just a couple of ever-increasing number of lawsuits that are brought against researchers, whether directly naming them or indirectly naming them. We've even seen nonprofits lose funding for counter disinformation projects, and Yoel Roth had to flee his home after an onslaught of online threats.

And so, I think it's important to note that while the point of independent research is really to strengthen the functioning of our democracy, to make us smarter, safer, attuned to how technologies across industries are impacting us, these efforts are impacting the very ability of research to achieve its stated functions.

These kind of research partnerships between academics and government are commonplace in a number of industries, and have been, from defense partnerships to specific research partnerships to counter everything from human trafficking, to crisis relief, disaster reconnaissance, even how mammograms should be conducted. And so, there's nothing particularly earth-shattering about research in this sphere.

I'd say one other thing, which is that if this kind of chilling effect continues, this case and its progeny I think could prove to be an occupational hazard for researchers, and I think we all should care within civil society if that's the case, because if their funding, reputation, or safety is on the line, it's hard to imagine how many researchers could stay motivated to continue to be engaged no matter how strong their sense of serving the public is.

Dean Jackson:

Both of us have fairly long backgrounds of paying attention to disinformation research, doing different types of advocacy to tech companies, about tech companies, and a sort of element of tech advocacy for most of the past decade has been the ability to talk to platforms and report to them, "Hey, we are seeing these problems online. They're leading to these harms. Could you address them in your policies? Could you address these posts which may violate some of your policies?"

For a variety of reasons, including the ones you've just laid out, that model of advocacy seems to be trending downward. Advocates are looking for different paths to impact. I wonder if you could talk a little bit about what might replace those efforts in a world where that has been frozen over.

Meetali Jain:

When I've been in the position of being an advocate in organizations that have researchers amongst us, it has been commonplace, I mean to the point of being mundane, that the most efficient method of communication has involved engaging government actors, engaging platforms, when possible engaging both, sometimes together, sometimes not, and trying to really encourage government to use its bully pulpit to raise hay about the harms that are being seen online and to get companies to actually care about these harms.

And so, I think that the multi-pronged strategy that we've taken to be true, that we've taken to be the way that things get done, I think that's in question right now. To your question about what replaces it, I mean I suppose the most prudent path forward would be a very inefficient one, of NGOs that are in this space that are studying harms online would then have to publish their research, put it out into the media, but not necessarily have that direct communication with government and with companies for fear of perhaps being held in contempt or having lawsuits waged against them or being hauled into Congress.

Dean Jackson:

It almost feels to me, and I wonder if you feel this way, like ... The outcome of this case will obviously be significant, but, in a way, the plaintiffs have almost achieved their objectives already. It feels as though the desired outcome has already been achieved just through this process that you've laid out. Do you think that's true? Is that fair?

Meetali Jain:

I do. I think that to the extent that one can really locate this case within a broader political strategy that's been unfolding for years, what the lower case rulings have done has been to achieve a certain amount of success, if you will, on the part of plaintiffs and their allies, and that in order to counteract that chilling effect, that there's going to need to be both a really important legal decision from the Supreme Court, but there's going to have to be some other efforts as well that go beyond what the court can do.

Dean Jackson:

We talked a lot about the consequences for researchers, but the researchers themselves do this work because they feel that it's important. Some of the amicus briefs that we haven't talked about yet, such as the one filed by a group of secretaries of state on behalf of election administrators, and then also one filed by a physicians' association, they lay out some of the stakes of what types of communications between government and platforms these cases were really about, what the point of this research was. The chilling effects, it seems to me, extends too to things with real tangible implications for election integrity, national security, public health. Can you talk a little bit about why we care about all this and the fallout as it affects those factors, too?

Meetali Jain:

I think, first, maybe one that's lesser understood, but equally relevant to this case is thinking about public safety. There was a multi-state HE brief filed in support of the government, which really laid out the kinds of very apolitical types of disinformation that state officials and agencies are routinely escalating, everything from just natural or manmade disasters to thinking about other kinds of consumer protection issues like financial or economic scams.

Everything here is jeopardized, because even if the plaintiffs here could come back and say, "Well, that's technically accepted from this injunction," again, the chilling effect is broad because the injunction is worded in a very broad way. So it's not clear what the limiting principle is, especially to folks who are at the frontlines on the ground.

So I think it's important to think about that from a public safety standpoint, that this extends beyond named federal agencies. And it potentially extends to matters that we don't think of as routinely being about disinformation.

But going to the national security example, I think it's an interesting one because there have already been very tangible effects. There's been media reporting that the State Department, for example, has canceled all meetings with platforms about foreign influence operations. In a briefing just this month, a CISA official told reporters that the agency "has not been in touch with social media companies regarding our election security-specific mission".

I think that's really critical to note that this paralysis is unfolding at the same time that the threat level for state-sponsored information attacks on US election integrity is rising and continuing to rise. We saw this in 2016. In fact, that was what, in many instances, instigated the development of various efforts to share intel about foreign threats. And yet, as a former Twitter official, Anika Collier Navaroli has said the level of preparedness that we're seeing for our elections this year is, in her words, pre-2016.

So that's very remarkable, and I think that says nothing of the rising specter of how generative AI is going to factor into these elections, about all the radical cuts in trust and safety staffing within platforms that have occurred, I think put together an aggregate that creates a really dismal landscape for election integrity.

That's just thinking about federal agencies. State and local officials are already also feeling the pinch of this decision. As you mentioned, the secretaries of state have filed an amicus brief of their own in which they say that forcing social media to block all direct contact with government officials has already increased the risk of dangerous and illegal falsehoods about elections and voting to spread unchecked.

Dean Jackson:

I wondered if you would talk a little bit more about the types of narratives and content that all of this is about. When you say Meta held up its meetings with the National Association of Secretary of State, it's not just about the ability of government officials to meet with them, but the platforms are reacting, being asked to react to things that are spreading through their services.

We're still in the shadow of the Big Lie. I think a lot of people are worried about the specter of political violence this election, and the amicus brief from the secretaries of state that you referenced goes into detail about the kinds of death threats and messages election administrators are getting and the impact of election fraud narrative on the ground almost four years later. Could you say a little bit more about what happens in the absence of the ability of NASS to talk to Meta?

Meetali Jain:

Elections, at their core, are a function that has been overseen by state governments. And so, although CISA and the FBI play a role in election oversight at federal level, really thinking about the secretaries of state, thinking about local election officials caught up in this is critical.

The Brennan Center recently released a report in which they identified that election officials reported an alarming increasing level of threats and abuse. 43% of state legislators experienced threats, 18% of local office holders experienced threats, and 38% of state legislators reported that the amount of abuse they experienced has increased.

I think it's important to note too there was another amicus brief filed by local and state election officials that was strictly bipartisan, and these threats are not just levied against one side of the political spectrum. In fact, Secretary of State Brad Raffensperger in Georgia has continued to experience death threats.

Of course, beyond that, there's all kinds of mundane type of disinformation. When I say mundane, I don't mean that it's unharmful, but just that it's not necessarily the big lie. It's things like clearing up confusion about dates of elections or registration deadlines, moving polling locations if there's a natural disaster, just things that are fast-moving and that state officials need to be able to escalate directly to platforms or via CISA as they have been doing for years.

So to treat social media companies as state actors if election officials flag blatantly inaccurate information about election procedures, policies, and results. I think that would undermine the ways in which these communications have been escalated through switchboarding operations over the course of years.

Then that's to say nothing of how when violent threats spread across platforms, state officials would not then be able to escalate those either. So it affects both the surreal, very violent threats that we know and we've seen have come down on platforms, but also the very routine kinds of falsehoods that have been promulgated through domestic actors and the like.

Again, that broad suite of an injunction really pertains to both, and all of it has been chilled. Those secretaries of state, there were eight of them that filed, said that they've effectively stopped communicating with social media platforms, and this is eight months before a very critical election cycle in this country.

Dean Jackson:

Earlier you called this case part of a political strategy. I want to talk about the strategists. Can you lay out the argument for me why this is motivated by more than injuries to free speech rights and what is the constellation of actors who conceived of this strategy and stand to benefit from it?

Meetali Jain:

I would like to look back to the executive order from 2020 that Trump issued regarding the prevention of "online censorship". That executive order really laid the foundation for a multi-year political and legal strategy that we're starting to see play out in different fora and using different actors, which basically has taken this long-established sacred ideal of free speech and weaponized it as a tool to raise grievances about so-called censorship against conservative speech.

The order specifically said, "In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey on the internet."

That I think has been the rallying cry for a lot of what we've seen since, this attack that's not only levied against platforms, but then levied against their so-called conspirators, the federal government, independent researchers, et cetera, to provide that bulwark against the so-called censorship industrial complex as Representative Jordan likes to say.

And so, we've seen that manifest in different instances around social media bans, vaccine hesitancy and narratives around that, the Twitter Files of course, the House subcommittee hearings in Congress, and then more recently this spate of lawsuits against both the government entities and researchers. I think all of this can be traced back to that bedrock foundation that was really laid out in the executive order for all the public to see.

Dean Jackson:

The executive order, I also find really important for understanding this case, in part because it was itself to me such a clear example of jawboning. It might help if you refresh people's memory of the context in which that order came down.

Meetali Jain:

So the context of that order was really as Trump's response to how his own posts were moderated in the wake of the murder of George Floyd, and specifically his posts around when the looting starts, the shooting starts. Then we saw that subsequently there were a number of posts were moderated in ways that he disapproved of.

And so, this really then becomes the rallying cry against conservatives who feel aggrieved that their speech is being moderated by platforms, and they start to create a theory that the government and, in fact, independent researchers have contributed to this phenomenon of censorship. And so, again, using Congress, using the courts, using the bully pulpit for as long as he was still in office, Trump and allies in the Republican Party started to create opportunities to really push this narrative and to see how much reception it would get.

There's no doubt that the legal issue that's presented around the correct interpretation of state action is a legitimate one, and we all could use guidance on what a brighter line is for what constitutes state action. But to me, there's no doubt that the political strategy that we just spoke about is what led to the filing of this case and the framing of this case.

I think what often gets lost in the public narrative about the case is that it's a selective interpretation of free speech. It's effectively speech for me, but not for thee, because there's a move afoot to do two contradictory things. If you look at the NetChoice cases that the Supreme Court heard about a week and a half ago concerning the Florida and Texas laws, that was ostensibly about the state legislatures adopting laws compelling platforms to carry speech, even if the platforms disagreed with it, even if it violated their terms of service. But at the same time-

Dean Jackson:

Must-carry provisions, right?

Meetali Jain:

Must-carry provisions. But at the same time, the conservative AGs in this case have filed an amicus brief wanting to maintain an injunction that prevents the government from expressing its views about that speech.

So for conservatives that normally favor limited government and judicial restraint, that is a spectacular use of government power to do both, to both require some speech and to restrict other speech. I think that's a really important point that ironically the FIRE amicus brief, which is actually filed in support of the plaintiffs here, points out quite effectively.

I think the case is much more than about past content moderation decisions in regard to the pandemic or Hunter Biden's laptop. It's really, one might argue, eight months out from the election, about plaintiffs who are motivated to disallow government national security, election integrity-focused agencies from collaborating with researchers who are attempting to achieve platforms' stated aims around combating election-related misinformation, but rather to preserve every tool that they have at their disposal to use networked disinformation as a political strategy themselves.

Dean Jackson:

Yeah. I'm so glad you brought up the FIRE brief because, first off, I think it's important to consider some of the briefs that have come in more concerned about jawboning, to at least discuss the possibility that we should be worried about the ability at least, if not the practice in fact of government to pressure speech intermediaries.

But also it's worth a read just because I feel like it's so begrudging. They come out in favor of the plaintiffs, but only the first third of the brief is spent exploring the issues you've laid out, which are the contradictions between these various court cases.

You called this networked disinformation as a strategy, and that strikes me as right, but it also takes place against an even broader social backdrop in which speech itself is at the center of our larger culture war. You see some of the same people who are involved in these lawsuits also engaged in attacks on academic freedom.

So it seems to me, in a way, like there doesn't seem to be a principled leg to stand on around speech in this case. It seems to be all culture war all the way down.

But the last question I want to ask you, you said, and I think rightly, that there is a reason to be concerned about jawboning. It's not a fake concern per se. Is there anything in the case, any instances that worry you from a free speech perspective, examples of government communications that you think there might be merit here to the idea that a line was crossed? Is there reason to do something congressional here or otherwise about these types of communications so there's more transparency and speech protections around them? It's always worth thinking about what happens if the shoe is on the other foot.

Meetali Jain:

There is an instinctual reaction to some of the facts as they've been presented in the courts below to say, gosh, that was a really ill-advised way of communicating on the part of government officials with social media companies. But as the piece that you wrote for Tech Policy Press as well as the solicitor general's reply brief point out, we really need to go below the surface and understand the context in which certain communications were made.

Now that may not cure all communications. There was one email in which there was a statement made by government to a platform about, "Are you guys effing serious? I want an answer on what happened here and I want it today." That type of tone or aggression may not be warranted, but again if one understands a long-standing attempt by agencies in the middle of a national crisis to get an understanding of what was happening on the platforms, one can understand it a little bit more. It's hard to really speak to the communications in this case without understanding the proper contexts in which they arose.

Thinking generally about jawboning, there's obviously many instances in which it could be problematic. I think often about the Indian context in which the Modi government has forced social media platforms in several instances either to employ government agencies or take in company employees hostage by holding them criminally liable for content moderation decisions. I don't think there's any question that would be an extreme form of jawboning, and there's going to be a lot of things in the middle.

And so, in terms of what we do about it that's future-looking, I think that goes to how I view what good looks like in this case. I think having a vacation of some parts of the injunction with a clear analysis of what constitutes state action is going to be foundational.

I would also want the court to affirmatively acknowledge the manner in which the invocation of the First Amendment here has had a chilling effect on legitimate other free speech and to decry that strategy, and if it doesn't do that, to at least acknowledge the importance of maintaining a multi-stakeholder approach to online safety and national security and election integrity, with guardrails of course, for protecting against some of these important threats that our democracy faces.

But I think that there's a number of non-court follow-ups that are essential to rebuilding trust and to mitigate against the chilling effects that have already been experienced. There's been call by some for adopting some sort of an executive order that sets up permissible areas of government communication with platforms.

Also developing the momentum to adopt legislation once and for all that actually mandates transparency and data sharing, both between companies and governments but also between companies and researchers. I think that's one thing that government can do.

I think companies can create official channels for accepting government input, and then be transparent in transparency reports about what those government inputs have been. Others like Yellowrock have suggested that there needs to be a radical transparency of either appointing someone to report to the public how content moderation decisions are made or providing access to data and transparency reports.

Then, finally, I think there's a role for us as civil society. I think we need to do work with impacted stakeholders to raise awareness about what this case is and isn't about, what the court ultimately decides and doesn't decide, and really encourage a resumption of communications that are going to be very critical as the year moves on, as we encounter elections.

We need to encourage researchers in our space, we need to encourage others to pull their heads high and provide support to them should there be any sort of consequence for their exercise of their own First Amendment rights.

Dean Jackson:

Thank you so much, Meetali.

Meetali Jain:

Thank you.

Dean Jackson:

All our guests so far have explained that the stakes in this case are bigger and more concrete than an intellectual exercise in clarifying First Amendment law, or even than alleged injuries to private citizens' speech rights.

I want to turn back to Jennifer and Mayze from the Knight Institute. As First Amendment scholars and advocates, their job is to improve jurisprudence around one of our most important political touchstones, but they too acknowledge the political elements of this case, the worrying way it has come before the justices and the ongoing damage it is doing regardless of its outcome.

So I'm back here with Mayze and Jennifer from the Knight First Amendment Institute. I want to put a proposition before you. If Murthy v. Missouri is based at least in a significant way on an inaccurate representation of the relationship between platforms and the government, and this narrative's been advanced largely by motivated partisans who hope to make it easier to lie for political gain and who, if they take power after the 2024 election, will harm American democracy in severe and lasting ways, and if, in some instances, have been quite open about the ways they plan to do that, is it wrong to think of this case as a conspiracy theory that has somehow wound up on the Supreme Court docket?

Jennifer Jones:

So we're skeptical that all of these government communications and interactions with the platforms should be read together as part of some broad conspiracy by the government. All of the interactions definitely shouldn't be treated as if they're all equally concerning.

I know we discussed before that there were some interactions that we think a lot of folks would agree were perfectly okay, such as the communications between the platforms and the CDC about what was and wasn't COVID-19 misinformation.

At the same time, it would be a mistake for the court to buy into the broadest version of the plaintiffs' arguments here, which would essentially hamstring the government by preventing it from having any communications with the platforms and where the government is prescribed from offering its perspective to these really large tech corporations that do have a massive societal impact.

On the other hand, it's important not to dismiss jawboning claims, including some of the claims in this case as inherently conspiratorial. Some of the communications the plaintiffs point to, which we discussed in our brief, are genuinely concerning. When government officials try to pressure intermediaries to take speech down or to leave it up, they're trying to override the judgment of those intermediaries, and that's problematic.

While this case did come about during what appears to be an ongoing campaign against the tech companies from the right accusing the platforms of anti-conservative bias in their content moderation practices, we can imagine or even point to real-world examples where the complaint of government jawboning is coming from the opposite side of the political spectrum.

For example, there have been reports that Meta's content moderation policies and practices have been silencing voices in support of Palestine and Palestinian human rights on Instagram and Facebook, at least in part due to apparent deference to requests by foreign governments. So the report doesn't discuss pressure from domestic governments, but that could be happening.

Or you could imagine a scenario where the same types of communications in this case are presented with Democrats on the plaintiffs' side and Republicans are defendants. Let's say President Trump in 2020 went on TV during the uprisings of the summer and said that social media companies were killing people by not taking down speech that was incendiary or encouraging people to protest against the police. That would be bad, and it's really important to think about these cases and the rule that should apply in a very principled way.

Dean Jackson:

Of course, something not that different from that did happen during the protests of the summer of 2020. President Trump, hours after platforms labeled one of his posts, attempted to remove their Section 230 protection through executive order, which to me would be as clear as day example of the type of coercion you're talking about.

Jennifer Jones:

Right, absolutely.

Dean Jackson:

Did you happen to read the amicus brief from FIRE?

Jennifer Jones:

I have not, but I believe Mayze has.

Mayze Teitler:

I have.

Dean Jackson:

We talked about this in the previous segment, and I found it really interesting because whether or not you agree with where they ultimately come down, which is that the government did transgress, the first full third of the brief is a conversation about the fact that this case is coming from the same people who are advocating for the social media laws challenged by the NetChoice cases before the court, which include must-carry provisions for platforms, so that these free speech rights of platforms have no defenders on the right between that case and this case. The government can't communicate to them, government has no right to their speech, but also platforms have no right to make their own content moderation decisions.

I found it to really ground the legal questions in this political moment and to call out the campaign as it were. Does focusing on the legal question of persuasion or corrosion, while it strikes me as the right question for a legitimate and genuine problem in the context of this case, does that play into a coordinated attempt to shape the law? Are we in some ways falling into this trap by having the discussion that people who really don't have the First Amendment's best interest at heart want us to have?

Mayze Teitler:

So I think FIRE's brief recognizes something that is really real about this political moment. So the conservative state governments in NetChoice and in Murthy want to have it both ways. They want to be vindicated on this claim that their citizens' rights were interfered with by an overreaching democratic government. They also want to be able to say, "Well, actually what the platforms are doing isn't really protected in an expressive way, and we can actually tell them how to exercise their editorial discretion."

I think FIRE's really right to point out that those questions implicate a similar question, which is this idea that these platforms' content moderation policies reflect the exercise of some kind of editorial judgment. The court's resolution of that question in one case will certainly influence the outcome of it in another case.

But I think, more generally, it's important that the court resolve both of these cases in a way that protects the public's interest in both expressing itself, but also in hearing from its government, and letting the government play this role it needs to have in speaking to regulated industries and addressing crises.

So I guess I want to say that FIRE is really right to acknowledge that the behavior is intention in both these cases, but we wouldn't want an outcome where the court doesn't allow for beneficial communications that really help the public to understand the role of government to communicate on the platforms and to obtain accurate information. I think an outcome that didn't preserve that interest of the public would be a bad one.

Dean Jackson:

Yeah, that's really important and I think a really good point. Let's talk about the consequences, or the potential consequences, of this case. It's already had consequences and we heard in the previous segment about the chilling effect that it's had on government, on researchers, on their work and their ability to interact with platforms. We talked a little bit about the consequences for elections and for public health and public safety, but there's also legal consequences.

What are the ways this place could play out? What are the stakes if things like the state action question are answered in not the ways you advocate, but in other ways? How would that affect governance and speech in the United States?

Jennifer Jones:

Yeah, that's a great question. With respect to the state action question, it's possible that the court might uphold the Fifth Circuit's decision. We, of course, think that would be a mistake, in part because a court's finding that a platform's decision reflects state action could mean, again, that both the government and the platform may be held liable for violating the Constitution. This would really expand the liability of the platforms to First Amendment requirements that ordinarily apply only to the government.

As I discussed in the previous segment, this is really troubling when you consider that the social media platforms do have this First Amendment right to make editorial decisions about the content they publish on their platforms and the type of communities that they want to create online. This threat of expanded liability really undermines that right.

It is possible, of course, that the court will maybe make a state action ruling that's a little bit more limited in a way that doesn't expose the platforms to liability when they communicate with the government in the way that I've described. That outcome would involve a narrower state action decision where state action and Bantam Books maybe would be read coextensively, or where the court clarified that the Fifth Circuit framework couldn't be used to hold platforms themselves liable.

So that would be better. But, of course, our position is that the best outcome, the best ruling would be for Bantam Books to be the test that's applied.

Dean Jackson:

One of the mind-boggling examples is one that you all raised in our first segment, which was the CDC. This platform's going in a global health crisis to the government, which employs experts for this very purpose in order to get advice on how to implement their own policies. If that is state action, if that transforms platforms into an arm of the government, what doesn't? Am I wrong to think of that as just a really sweeping and profound transformation in the way government relates to almost all parts of our society?

Jennifer Jones:

I don't think you're wrong, and I do think that it is a really scary prospect. I think the CDC example really illustrates the risks, like you've said, of the court affirming the Fifth Circuit's decision on the state action question. If the decision is affirmed, you'll see a lot less valuable information sharing between government agencies and the social media companies on matters that affect the public, like public health. I think this reluctance to share or seek out information would go both ways. It would be because both government officials and the platforms would be hesitant to communicate with each other due to fears of this state action liability.

As I mentioned in the previous segment, it also will have consequences for future elections. There is a lot of information sharing between federal, state, and local governments when it comes to protecting election integrity. I think the overall effect of the injunction, if it's allowed to persist, would be to impair the ability of the government to work collaboratively with the platforms, with third parties, university researchers, to protect elections against disinformation and voter suppression efforts.

This would lead to serious consequences. Under the injunction, enjoined agencies wouldn't be able to do much about disinformation and misinformation running rampant on the platforms related to voting. They wouldn't be able to share intelligence with social media companies, or even voice policy positions on how the company should be moderating content at press conferences because there will just be this ongoing fear that those statements might be perceived by the platforms as coercive.

As I've alluded to, this chilling effect wouldn't just affect federal officials, even though the focus of this case is federal officials. You could imagine that state and local officials obviously are going to be paying attention to the outcome of this case as well. It's very likely that, to avoid a lawsuit, they also will avoid communicating with the platforms about these really important issues.

Dean Jackson:

So to recap, if I were to try and summarize what you think would be a good outcome in this case, I would say Supreme Court endorses Bantam Books as the gold standard for understanding jawboning claims, applies a test of persuasion versus coercion, and then what should it do with the material claims at play here? I've heard people say they should vacate parts of the injunction and return it to the lower court, which I believe is Knight's suggestion. Why is that the right choice?

Mayze Teitler:

I think an ideal outcome here would be the court being really specific about the standard and the types of communications it views is okay, and then providing an opportunity for the lower court to apply that standard, which is what typically happens in a case like this where the court announces a nuance or a clarification or development on a test. If that standard isn't applied well, there's the opportunity for the government to appeal up again, though obviously that's onerous.

And so, the hope, I think, would really be for the court to clearly articulate the values that are motivating that test in a way that makes the test much easier to apply, and ensures that the public can get the information it needs while also protecting its speech.

And so, I think the idea of vacating parts of the injunction is asking the court to say, clearly, these are the parts of the injunction that clearly go too far while recognizing that, for instance, the example we used earlier about the email exchange that is potentially genuinely concerning might merit analysis under an updated test. But being really, really specific about which parts are concerning and which parts are not.

I think the goal of that would be both to give the litigants a fair day in court under the new standard, but also to, as my colleague Jen alluded to, provide guidance to officials going forward federally, at the state level about what types of communications are permissible, so that going forward, and particularly into this election cycle, they know how to address misinformation in a way that isn't going to expose them to frivolous litigation.

Dean Jackson:

I can't think of a better note to end on than that. Thank you both so much for being here.

Oral arguments in Murthy v. Missouri will be heard on March 18. We'll continue watching the case and discussing developments as they occur.

But as we heard from our guests, if one considers Murthy v. Missouri not as a test of the First Amendment, but as part of the groundwork to influence the 2024 election, it's already paying dividends to the architects behind that strategy.

Election integrity efforts have already been hamstrung going into what once again feels like the most important election in a generation. Even if the court throws out the plaintiffs' claims, that damage is unlikely to heal soon.

When you take together the fallout from Murthy v. Missouri and the cuts to platform trust and safety, it is difficult not to feel like efforts to protect US elections from disinformation, propaganda, and the specter of violence have fallen to their lowest levels since 2016. As of this recording, the election is just over 235 days away.