A case arising out of the government’s influence on social media companies’ enforcement of their content moderation policies received a mixed reception at the U.S. Supreme Court last month.
In Murthy v. Missouri, five users of social media platforms as well as two states, Missouri and Louisiana, sued several federal agencies and officials for allegedly violating their First Amendment rights by pressuring social media platforms to remove, deprioritize or add disinformation labels to their posts. The complaints primarily focus on posts with content related to the COVID-19 pandemic and 2020 election.
During the 2020 election as well as the early stages of the COVID-19 vaccine rollout, several social media companies adopted content moderation policies aimed at removing or limiting visibility of posts containing misinformation. White House officials spoke privately to several social media companies to flag and encourage them to remove certain posts related to the vaccines and election that the administration identified as inaccurate. When platforms declined to act upon White House requests, officials made public statements criticizing the platforms, calling on them to do more, and proposing possible regulatory reforms to hold platforms responsible for disinformation disseminated by their users.
The plaintiffs argue the administration’s statements threatened the social media companies into removing and suppressing speech through private and public statements. Because the decisions to remove and suppress speech were coerced by the federal government, plaintiffs allege, they are state actions for purposes of the First Amendment and unconstitutional government censorship. The First Amendment forbids Congress from creating legislation that would prohibit the exercise of free speech, and the 14th Amendment extended this prohibition to all levels and branches of government. State actions that abridge free speech rights are forbidden, including state actions that compel private entities to take a particular action that would violate the First Amendment if the government did it by itself.
The petitioners argue the case should have been thrown out because the plaintiffs lack standing to sue under Article 3 of the Constitution. Petitioners argue the individual users have not shown that any decisions by the social media companies to remove or deprioritize their content are causally linked to the government’s actions instead of the platform’s own enforcement of its content moderation policies. The petitioners assert that Louisiana and Missouri lack standing for the same reasons as the individual plaintiffs, but also because the states cannot assert a right to listen to their residents via social media. Essentially, the states have not been injured by the actions of the petitioners so they cannot sue for redress.
In response to the plaintiffs’ arguments, the Biden administration maintains that the communications between the administration and social media companies were in keeping with a long history of federal officials communicating with the media and private actors to inform, persuade and protect the public.
During the oral argument, the justices focused on whether coercion from the government is admissible in some scenarios. Justice Ketanji Brown Jackson posited that the emergent threat of COVID-19 might make the government’s action admissible under the strict scrutiny standard. Justice Elena Kagan pushed back against the plaintiffs, arguing that many normal discussions between the government and private actors would become illegal if the court accepted plaintiffs’ arguments.
The court will issue a decision later this term.
Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Relations Division.