Supreme Court Dodges Key Question in Murthy v. Missouri and Dismisses Case for Failing to Connect The Government’s Communication to Specific Platform Moderation

We don’t know a lot more about when government jawboning social media companies—that is, attempting to pressure them to censor users’ speech— violates the First Amendment; but we do know that lawsuits based on such actions will be hard to win. In Murthy v. Missouri, the U.S. Supreme Court did not answer the important First Amendment question before it—how does one distinguish permissible from impermissible government communications with social media platforms about the speech they publish? Rather, it dismissed the cases because none of the plaintiffs could show that any of the statements by the government they complained of were likely the cause of any specific actions taken by the social media platforms against them or that they would happen again.   

As we have written before, the First Amendment forbids the government from coercing a private entity to censor, whether the coercion is direct or subtle. This has been an important principle in countering efforts to threaten and pressure intermediaries like bookstores and credit card processors to limit others’ speech. But not every communication to an intermediary about users’ speech is unconstitutional; indeed, some are beneficial—for example, platforms often reach out to government actors they perceive as authoritative sources of information. And the distinction between proper and improper speech is often obscure. 

While the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion. 

So, when do the government’s efforts to persuade one to censor another become coercion? This was a hard question prior to Murthy. And unfortunately, it remains so, though a different jawboning case also recently decided provides some clarity. 

Rather than provide guidance to courts about the line between permissible and impermissible government communications with platforms about publishing users’ speech, the Supreme Court dismissed Murthy, holding that every plaintiff lacked “standing” to bring the lawsuit. That is, none of the plaintiffs had presented sufficient facts to show that the government did in the past or would in the future coerce a social media platform to take down, deamplify, or otherwise obscure any of the plaintiffs’ specific social media posts. So, while the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion. 

The through line between this case and Moody v. Netchoice, decided by the Supreme Court a few weeks later, is that social media platforms have a First Amendment right to moderate the speech any user sees, and, because they exercise that right routinely, a plaintiff who believes they have been jawboned must prove that it was because of the government’s dictate, not the platform’s own decision. 

Plaintiffs’ Lack Standing to Bring Jawboning Claims 

Article III of the U.S. Constitution limits federal courts to only considering “cases and controversies.” This limitation requires that any plaintiff have suffered an injury that was traceable to the defendants and which the court has the power to fix. The standing doctrine can be a significant barrier to litigants without full knowledge of the facts and circumstances surrounding their injuries, and EFF has often complained that courts require plaintiffs to prove their cases on the merits at very early stages of litigation before the discovery process. Indeed, EFF’s landmark mass surveillance litigation, Jewel v NSA, was ultimately dismissed because the