The Supreme Court and the Federal Government’s Backdoor Censorship Campaign

The Supreme Court recently granted certiorari in Murthy v. Missouri (formerly Missouri v. Biden). The justices will weigh whether the federal government’s efforts to shape social-media platforms’ content-moderation decisions violated the First Amendment.

The 5th U.S. Circuit Court of Appeals ruled that several federal entities/agencies (the White House, the Surgeon General, the Center for Disease Control (CDC), the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency (CISA)) likely violated the First Amendment. The 5th Circuit’s three-judge panel enjoined those agencies from acting to “coerce or significantly encourage” platforms to remove or otherwise suppress legally protected speech. The panel explained that significant encouragement involves the government exercising some degree of “active” and “meaningful…control” over a private entity’s decision making (emphases removed).

Solving complex problems requires measured and considered solutions. The 5th Circuit’s ruling has many merits but also some gaping flaws. First off, although the its opinion articulated clear and compelling broad-strokes standard of prohibited conduct, its application of that standard and analysis of the factual record seemed cursory and at times scattershot. Moreover, its injunction correctly identified much clearly violative conduct, but the reasoning became muddled in other instances, causing confusion and even potentially limiting the rights of private companies.

The high-running partisan emotions that animate politicians, media members, and even this case’s district judge have already distorted national coverage, but the Supreme Court must navigate these raging storms. Free-speech advocates should view skeptically all calls to stretch the law or in this case to gain an immediate “victory.” Murthy’s resolution will impact the future of online speech greatly, and liberty-minded observers understand well the havoc activist judicial decisions can cause. Setting nonsensical precedent will, in the long term, only cause further trouble.

This case illuminates a grave political and cultural problem facing the country. On certain topics, many politicians, bureaucrats, and tech executives believe that gatekeeper platforms ought to limit the dissemination of speech that contradicts (a generally left-wing) intellectual orthodoxy. Much of the suppressed speech had no basis in reality (see: Robert F. Kennedy, Jr.) but the First Amendment protects wild conspiracy theorizing as unequivocally as it protects sage wisdom.

As the record demonstrates clearly, employees at companies often sought out intimate coordination with federal officials, and they gullibly accepted the government’s assessments of truth, which often proved dubious. It is important to note that the platforms often rebuffed the government’s moderation suggestions as well; “the FBI had a 50% success rate regarding social media’s suppression of alleged misinformation,” as the district judge in the case wrote. Perhaps most egregiously, the platforms in certain instances suppressed truthful speech that they feared would damage some larger narrative.

Murthy is a legal case and its resolution will require constitutional and jurisprudential analyses, not political argumentation. And, legally speaking, much of the government’s albeit reprehensible conduct seems unlikely to violate established First Amendment jurisprudence. The Constitution does not ban all bad conduct.

First off, note that the 5th Circuit accurately identified much likely unconstitutional behavior, particularly from the White House. Often repeatedly, and sometimes aggressively, the Biden administration harangued platforms. “Are you guys f***ing serious? I want an answer on what happened here and I want it today,” one frustrated staffer wrote. The president suggested that platforms’ noncompliance with his demands was “killing people,” and officials including then–White House Press Secretary Jen Psaki threatened legal retaliation should platforms refuse to obey.

Although the panel stated that some agencies’ conduct crossed the legal line, and that others’ didn’t, it failed to indicate precisely where the line lays. Even Supreme Court justices seem confused on this count. When the Court took the case and stayed the 5th Circuit’s injunction, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) dissented from the stay. Alito objected to the government’s assertion that the injunction would likely lead to harm, writing that it “did not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government’s view of responsible conduct.” Alito continues by positing that “The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights.”

Alito relates the injunction’s top-line prohibitions correctly, yet he fails to note the fact that the 5th Circuit provided no cognizable test to determine when the government’s legally permitted advocacy morphs into illegal pressure.

Consider the appeals court’s treatment of CISA. Initially, the 5th Circuit ruled that CISA’s conduct fell short of a First Amendment violation. “There is not sufficient evidence that CISA made threats of adverse consequences — explicit or implicit — to the platforms for refusing to act on the content it flagged,” the panel wrote. “Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner.”

However, the next month, the panel issued an updated injunction that reversed its position on CISA’s conduct. In its new analysis — just a paragraph long — it gave scant reason why the agency’s persuasive conduct suddenly constituted significant encouragement. The panel wrote that CISA had “used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech” and “affirmatively told the platforms whether the content they had “switchboarded” was true or false.” But neither fact necessarily implies “[s]omething more” than permissable government attempts at persuasion, and neither is inconsistent with the panel’s original assessment quoted above. What changed its mind remains unclear.

The 5th Circuit determination that the CDC’s conduct constituted significant encouragement raises similar questions. The agency held information sessions with platforms and suggested content-moderation strategies. However, the platforms voluntarily “asked CDC officials to decide whether certain claims were misinformation” and “came to heavily rely on the CDC” (emphasis in original). In short, the platforms chose to accept official guidance credulously.

While such censorial behavior should appall any free society, the Supreme Court must consider the implications of the 5th Circuit’s finding regarding the CDC. Given that the platforms — particularly Facebook — often enthusiastically solicitated the CDC’s input, the panel’s reasoning seems to suggest that some limit on a private business’s right to request and act on scientific or technical information from authorities may exist. Such a limitation of private liberty would almost certainly violate the First Amendment. It would be an odd outcome for a case that putatively champions free speech.

The judiciary’s difficulty applying its quite sound legal standard suggests that a purely judicial response to government pressure campaigns cannot suffice. When the Constitution does not ban a given government abuse, Congress should enact a law to do so. First off, Congress should require officials to document — and whenever feasible, to publicize — their speech-related conversations with platforms. It should attempt, moreover, to craft sensible restrictions largely to prevent officials from interfering with content moderation per se, although this approach presents many difficulties.
Fortunately, this Supreme Court has anchored itself to nonpartisan textualism and originalism perhaps more than any other. When deciding Murthy, it should prioritize eliminating uncertainty by constructing a definite standard of what constitutes illegal behavior and outlining precisely and at length how that standard applies to facts of the case.

Then, Congress must act to expose and restrain the censorship-happy executive branch.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.