Murthy v. Missouri could have major ramifications for Big Tech and free speech

[Leroy N. Soetoro]

https://www.washingtonexaminer.com/policy/technology/murthy-v-missouri-
could-have-major-ramifications-for-big-tech-and-free-speech

The Supreme Court's decision to hear a case involving free speech,
government agencies, and social media could have monumental implications
for content moderation.

The court said last Friday that it would consider the merits of Murthy v.
Missouri (formerly known as Missouri v. Biden), a case initially brought
by the Republican attorneys general of Missouri and Louisiana. The two
state attorneys general contended that Biden administration officials
violated the First Amendment by colluding with Meta, Twitter (now known as
X), and YouTube to engage in censorship, including posts about COVID-19
and the Hunter Biden laptop story. A preliminary injunction from the
Southern District of Louisiana froze communications between Big Tech
companies and the government, although the Supreme Court stayed the
injunction while it considered the arguments.

Now the Supreme Court is committed, sometime this term, to hearing oral
arguments regarding whether government communications with social media
led to censorship and whether the breadth and terms of the district
court's order were proper.

A Supreme Court decision in the case could set a major precedent
concerning social media. Under existing jurisprudence, federal agencies
are barred from forcing others to restrict speech by the First Amendment.
But the legal questions around how much input can a federal agency over a
social platform like Facebook or X are less clear.

Murthy is a "really important case at this moment because we're trying to
balance the level of input government can have in the content moderation
policies and practices of privately owned companies," Kevin Goldberg,
First Amendment specialist at the Freedom Forum, told the Washington
Examiner. Freedom Forum is a nonpartisan group promoting free speech.

Companies have a right to be free from undue influence from government
agencies, Goldberg said. At the same time, private companies and federal
agencies will inevitably regularly speak with one another about matters,
which means that federal agencies may influence the decisions made by
leaders in the companies. What remains gray is what sorts of speech would
be considered coercive or forcing the opinions of the federal agency upon
the company.

This coercion is considered "jawboning," a practice in which a government
employee encourages, coerces, or compels another party to comply with a
request without using their respective legislative, judicial, or
regulatory powers. Jawboning is a broad term used to describe a multitude
of practices. It could describe reminders to a private entity about the
state of the law, or it could be explicit threats stating that the speaker
will take legal action if a specific book or piece of media isn't
censored.

"The First Amendment has long been understood to prohibit the government
from coercing bookstores and other speech intermediaries to suppress
speech, but the Supreme Court hasn't had to apply this rule in the context
of social media," Jameel Jeffers, the executive director of the Knight
First Amendment Institute, said in a statement. "Even outside that
context, it's said very little about how lower courts should distinguish
permissible persuasion from unconstitutional coercion."

One case that could offer insight into how the Supreme Court will rule is
Bantam Books v. Sullivan, University of Chicago law professor Genevieve
Lakier argued in a blog post. The 1963 case involved four book publishers
that challenged the Rhode Island Commission over its habits of censoring
reportedly "obscene speech" in privately owned bookshops. The court ruled
that informal communications between government entities and private
speech intermediaries like bookstores are fine as long as they are "purely
advisory" and not "coercive in purport." The Supreme Court would have to
determine if those terms also apply to communications with social media
companies.

Louisiana-based U.S. District Judge Terry Doughty issued the initial order
in July limiting the federal government's communications with social media
companies after the plaintiffs provided sufficient evidence of a "massive
effort" from the White House and federal agencies to "suppress speech
based on its content." The subsequent 5th U.S. Circuit Court of Appeals
ruling by a three-judge panel on Sept. 11 agreed with the decision.
However, it narrowed the number of government-affiliated entities affected
by the decision. The Supreme Court decided to block the order on Friday
and allow the agencies to communicate while it considered the legitimacy
of the decision.

The fact that the trial court and the appeals court appeared to find the
Biden administration guilty of "unlawfully coercing Big Tech" should be
"shocking," according to Dan Schneider, vice president of Free Speech
America, a conservative organization.

"In no way does [Murthy] let Big Tech out of the noose," Schneider told
the Washington Examiner. It merely delays the inevitable regulatory
actions necessary, such as the regulations proposed by Congress to change
whether or not Big Tech can be held accountable for limiting political
speech, Schneider argued.

Legal experts anticipate the conservative majority on the court to uphold
the initial order restricting jawboning, particularly in light of Alito's
dissent regarding the temporary blocking of the lawsuit. Alito argued in
his dissent that the high court erred in lifting the limitations on Biden
administration officials' communications with social media platforms
because the restrictions only applied to coercive speech.

The court is expected to hear arguments for Murthy this term, ending in
June. It will be the third social media-related case accepted this term.
The court will hear oral arguments next week over two issues regarding
whether public officials can block critics on social media. It will also
hear NetChoice v. Moody, a case that will determine whether a state can
penalize a social media platform for its content moderation decisions.


--
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President Trump boosted the economy, reduced illegal invasions, appointed
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