The Supreme Court sides with Biden administration in social media ‘jawboning’ case

The Supreme Court ruled in favor of the Biden administration Wednesday in a case concerning whether the government’s efforts to pressure tech platforms to moderate users’ content—a practice often called “jawboning”—violated the First Amendment. 

In the 6-3 majority opinion, Justice Amy Coney Barrett wrote that the plaintiffs in the case—including a group of social media users who claimed to have been censored by platforms under pressure by the federal government—lack sufficient evidence of injury to sue. “The plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant,” Justice Barrett wrote. “On the record in this case, that is a tall order.”

The case, Murthy v. Missouri, centered on a series of social media posts about subjects including COVID-19, mask mandates, and the 2020 election results, all of which the plaintiffs argued had been removed from tech platforms due to pressure from government officials. The argument, put forward by the social media users and the state attorneys general for Missouri and Louisiana, suggested that by jawboning the platforms into doing its bidding, the government had turned those platforms into state actors. That would, in turn, prohibit those platforms from engaging in censorship. 

A district court in Louisiana sided with the plaintiffs and put in place a series of restrictions on government agencies’ communications with tech platforms. The Fifth Circuit Court of Appeals later limited some of those restrictions, but still held that the government’s coercion of tech platforms transformed those platforms’ decisions into state actions. The court case briefly put a chill on government agencies like the Federal Bureau of Investigations’ ability to communicate with major tech platforms about emerging threats. 

Though the tech industry generally abhors jawboning, the possibility of being cast as a state actor was also received as an existential threat by the industry. In an amicus brief, tech industry groups including NetChoice and others, argued that when government actors pressure tech companies to censor content, it’s the tech companies whose First Amendment rights are being violated. The groups wanted the court to crack down on government jawboning, without conflating tech companies’ content moderation decisions with state action.

Other First Amendment scholars urged the court to use the case as an opportunity to clearly articulate when government jawboning crosses the line from mere persuasion to unconstitutional coercion.

And yet, in deciding the case based on the plaintiffs’ standing to sue, the court did not take on any of those questions. “The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” Justice Barrett wrote, noting that the court doesn’t have jurisdiction to exercise “general legal oversight” of other branches of government. 

“We begin—and end—with standing,” her opinion reads.

Justice Samuel Alito was joined by Justices Clarence Thomas and Neil Gorsuch in a dissent, which argued that the case amounted to “one of the most important free speech cases to reach this Court in years.” 

“Government officials may not coerce private entities to suppress speech, and that is what happened in this case,” Justice Alito wrote. Alito focused on evidence that officials at the White House and the Surgeon General’s office had “continuously harried and implicitly threatened Facebook with potentially crippling consequences” if it didn’t remove posts from one plaintiff, Jill Hines, related to COVID-19. “Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit,” Alito wrote. “This evidence was more than sufficient to establish Hines’s standing to sue.”

While the case leaves the underlying questions around government jawboning for another day, the court’s decision was praised as a win by groups that are often critical of Big Tech’s failure to remove problematic posts and who want to see greater collaboration between tech platforms and government agencies in tackling online threats. “Cooperation between the government and platforms about foreign influence campaigns, election integrity and public health emergencies is essential to preserving public safety and a healthy democracy,” Nicole Gill, executive director of the advocacy group Accountable Tech, said in a statement. 

Tech industry advocates, meanwhile, saw the ruling as a hopeful sign of what’s to come in the courts’ forthcoming opinions in another highly anticipated series of cases—Moody v. Netchoice and Netchoice v. Paxton. Those cases focus on whether two laws in Texas and Florida that prohibit platforms from “censoring” political speech in fact violate platforms’ own First Amendment rights. “What we see in this decision is that the Court actually understands how content moderation works,” Jess Miers, legal advocacy counsel for the tech trade group Chamber of Progress, wrote in a statement. “Platforms have an important reason to seek information from actors like the CDC or national security leaders, but at the end of the day, their content moderation decisions and platform policies are their own.”

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