Murthy v. Missouri: Balancing Practical Governance and First Amendment Freedoms in the Digital Age

Armed with Teddy Roosevelt’s “bully pulpit” and what political scientist Richard Neustadt termed the “power to persuade,” the President and the broader executive wield a unique power to influence the actions and opinions of private actors. From it, FDR bolstered the nation’s morale during the Depression, and Lyndon B. Johnson advocated for the Civil Rights movement. But when does the executive voice in the bully pulpit become a mere bully, not a moral leader? When do social media platforms moderating at the executive’s behest — especially one using bullying and bluster — become agents of the state used to suppress disfavored views? This is the question the Supreme Court faced as they granted certiorari Murthy v. Missouri, a social media case — much like Lindke v. Freed — that will massively impact the government’s ability to interact with social media behemoths like Facebook and X in their attempts to moderate digital communication and protect national security. Despite the Justices’ textualist impulses, the Court must carefully balance the practical considerations of national security and truth with First Amendment rights, choosing a middle path that protects essential speech freedoms while allowing agencies to communicate critical information to social media platforms.

During the outset of the COVID pandemic in March of 2020, government organs like the FBI, the White House, and the CDC established regular communications with social media platforms like Facebook and Twitter, among others, discussing how best to combat rampant misinformation and even “malign foreign actors” during the pandemic and in the wake of the 2020 election. The FBI provided lists of accounts operated by Russian intelligence and terrorist cells to staunch the flow of election integrity lies or radicalizing material onto their platforms. In a series of emails, the FBI, the White House, and other agencies provided lists of accounts designated for ban or moderation, including health groups, ordinary American citizens, and tweets from current presidential candidate RFK Jr. questioning the safety and efficacy of vaccines and the validity of CDC recommendations.

Following initial parens patriae complaints of government censorship filed by the state of Missouri to contest these interventions, a wide range of plaintiffs joined with claims of injury from bans or censorship levied against them by platforms from 2021 onward. Victories for Missouri in lower courts resulted in the US District Court for the Western District of Louisiana granting a motion for a nationwide preliminary injunction that forbade the federal government from “meeting with social media companies or otherwise seeking to influence their content-moderation policies” After DOJ complaints described the impossible hurdles the injunction would create for agencies seeking to secure the public interest online. However, Justice Alito granted an emergency stay on the injunction on September 14, 2023, just days before it would take effect.

In this quintessential First Amendment case, multiple issues are set before the Court. The principal question is the notion of Article III standing. While much of the conservative bloc seemed vaguely supportive of Missouri’s argument regarding the illegality of the government’s participation or partnership during oral arguments, they projected less resolution on the issue of standing. The Court's current interpretation of Article III standing developed in Baker v. Carr, where Justice Brennan wrote that plaintiffs must demonstrate that injury arises directly from the alleged infringement to have proper standing. If Missouri et al. cannot clearly show traceability — past or future injury due to the government’s participation in censorship efforts — alongside the injunction’s ability to provide redress, the case or the injunction, respectively, may be thrown out for lack of standing.

Secondly, the Court must consider whether the government’s communication with platforms transmuted ordinary content moderation into state censorship that infringed upon the respondents’ First Amendment rights. Through a myriad of cases, the Court has punished government attempts to act indirectly through private organizations or individuals, often termed “jawboning.” Brian H. Fletcher, Deputy Solicitor General of the United States, arguing for Murthy, leaned heavily on the narrower conception of jawboning outlined in Bantam Books v. Sullivan. Justice Alito, however, showed strong suspicions about this conception of jawboning. In his colloquy with Fletcher, he expressed concerns that government actors could use subtext, authority, and even punitive changes to internet regulations to coerce actors so that their actions were not their own. However, Fletcher retaliated against Justice Alito, stating, “I disagree…The Fifth Circuit and the district court applied too loose a notion of traceability[,] a bird’s eye view of traceability[,]” which falsely presumes that any communication between government and platform transforms normal moderation actions into state action.

J. Benjamin Aguinaga, arguing on behalf of Missouri et al., advocated that the Court pursue a more sweeping notion of indirect state action described in Blum v. Yaretsky as “significant encouragement, either overt or covert, that the choice must in law be deemed that of the state.” The murky verbal conflict between Bantam and Blum's conceptions of inappropriate state action defined much of the oral proceedings; Aguinaga asserted that President Biden’s proclamations that Facebook was “killing people” with misinformation constituted such significant encouragement from the bully pulpit that platforms were left with little choice. Alito seemed to approve. Fletcher disagreed, positing that the platforms had already been pursuing moderation and censorship of topics like COVID, the war in Ukraine, and the 2020 presidential election before complaints were filed from 2021 to 2023, making Blum’s conception of encouragement insufficient proof that moderation was not merely the coherent pursuit of prior platform policies.

Aguinaga again lost his footing on the issue of standing after stinging verbal barrages from Justices Kagan and Sotomayor, where they questioned whether Missouri’s case relied on a “standing on the basis of injury to another,” a notion that would stretch the limits of parens patriae — the right of states to sue on behalf of injured citizens — beyond the bounds of precedent. In response, Aguinaga relied on the case of Jill Hines. Two months after the White House sent emails asking Facebook “to not distribute so-called vaccine hesitancy content and…to target health groups to do that,” Hines’ fringe health groups were taken down by Facebook’s mediators. At best, this argument is tenuous. Long temporal linkages and supposed government action that consists merely of broad references toward generalized “health groups” seem unlikely to prove that any moderation or bans enacted on the platforms were direct government action and not simply extensions of platforms’ preexisting attempts to limit misinformation.
To resolve the most pressing First Amendment conundrum the Court has heard in years, the Justices must create a definition of jawboning that provides concrete mechanisms to differentiate between coercion and mere communication yet errs on the side of free speech. From a purely legal perspective, Missouri and Jill Hines’ standing is paper thin. Despite this, the Court's evident eagerness to resolve the issue of government-platform relations will likely lead it to ignore Missouri et al.’s dubious Article III standing. While I do not propose an overly pragmatist reading that former Justice Breyer might apply, an incautious ruling for Missouri on the basis of Blum’s  “significant encouragement” definition of coercion could forever disentangle critical junctions between the government and social media platforms that ensure a well-informed citizenry and an information atmosphere free of foreign meddling. Despite Missouri’s noble attempt to defend the fundamental notions of the First Amendment in the era of the digital town square, the Justices must be cognizant of how a hardline ruling would strangle the government’s ability to pursue the public interest online; to remedy this, the Court must delineate precisely how government can continue to dialogue with platforms in a legal manner. A ruling for Murthy, however, while most easily securing the government’s need to communicate with platforms, could encourage either coercive, encouraged, or willful partnerships between social media platforms and the government, leaving an open door of legal precedent for would-be autocrats or a well-intentioned executive to suppress political speech. In Murthy v. Missouri, the Supreme Court must walk the tightrope of state power and individual freedom to produce a deliberate decision that successfully balances the spirit of the First Amendment with the practical realities of effective governance in the digital age.

Will Vogel is a sophomore at Brown University, double concentrating in Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu.

Veronica Dickstein is a sophomore at Brown University studying International and Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.