The following can be attributed to Alex Abdo, litigation director of the Knight First Amendment Institute.

“Based on the Court’s account of the facts, it was right to reverse the Fifth Circuit. Still, it is disappointing that we have so little guidance on the limits that the First Amendment places on government efforts to pressure social media platforms into suppressing speech. The platforms are attractive targets for official pressure, and so it’s crucial that the Supreme Court clarify the line between permissible attempts to persuade and impermissible attempts to coerce. This guidance would have been especially valuable in the months leading up to the election.”

The Knight Institute’s amicus brief urged the Court to clarify the First Amendment limitations on government efforts to pressure speech intermediaries like the social media platforms into suppressing speech. Specifically, it argued that the Court should make clear that jawboning claims should be evaluated under the Bantam Books test, which has been interpreted to draw a line between coercion and persuasion; articulate the First Amendment interests at stake to guide courts in determining whether governmental conduct was coercive; and resolve the case narrowly, without contorting jawboning doctrine in a prophylactic effort to address all of the many challenges created by the centralization of private power over public discourse. Read the brief here.   

In 2023, the Knight Institute launched a new research initiative on jawboning and the First Amendment. As part of this inquiry, the Institute has published a series of short thought pieces by legal experts, former social media platform representatives, and civil society advocates that consider the legal and practical questions raised in Murthy v. Missouri. Read the series here.

Read today’s decision here. 

Read more about the lawsuit here. 

Lawyers on the case include Abdo, Jennifer Jones, and Mayze Teitler for the Knight Institute.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

The following can be attributed to Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. 

“We're encouraged that the Court was sensitive both to the First Amendment rights of platforms and their users, and to the public interest in having a government empowered to participate in public discourse. To that end, we hope that the Court resolves these cases by making clear that the First Amendment prohibits coercion but permits the government to attempt to shape public opinion through the use of persuasion.”

Read the Institute’s brief here.

Last fall, the Knight Institute announced a new research initiative on jawboning and the First Amendment. As part of this inquiry, the Institute published a series of short thought pieces by legal experts, former social media platform representatives, and civil society advocates that considered the legal and practical questions raised in Murthy v. Missouri. Read the series here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

The following can be attributed to Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. 

“This is an immensely important case that will determine the power of the government to pressure the social media platforms into suppressing speech. Our hope is that the Supreme Court will clarify the constitutional line between coercion and persuasion. The government has no authority to threaten platforms into censoring protected speech, but it must have the ability to participate in public discourse so that it can effectively govern and inform the public of its views.”

Read the Institute’s brief here.

Last fall, the Knight Institute announced a new research initiative on jawboning and the First Amendment. As part of this inquiry, the Institute published a series of short thought pieces by legal experts, former social media platform representatives, and civil society advocates that considered the legal and practical questions raised in Murthy v. Missouri. Read the series here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

What’s hard about these cases is that both sides have merit. The First Amendment forbids the government from coercing others to engage in censorship on its behalf, but it permits the government to urge action and participate in public debate, even vigorously. The second half of this equation has been understated in the discussion of these two cases, but if the Supreme Court fails to account for it our democracy could suffer.

In National Rifle Association v. Vullo, the NRA argues that Maria Vullo—the head of New York’s Department of Financial Services—violated the First Amendment by pressuring banks and insurance companies to cut ties with the gun-rights group based on its political advocacy. In support of that claim, the NRA—represented by the ACLU (where I used to work)—alleges that Vullo coerced one of the NRA’s insurance companies by promising leniency in enforcing New York’s insurance laws against the company’s “array of technical regulatory infractions … so long as [the company] ceased providing insurance to gun groups, especially the NRA.”

This is a serious allegation of government coercion that (assuming the NRA can substantiate it with evidence at trial) violates the First Amendment. Vullo claims otherwise, arguing that this offer “was typical of the give-and-take that occurs in plea negotiations.” But as the Supreme Court said over 60 years ago, the First Amendment prohibits the government from invoking the threat of legal sanctions to suppress speech it disfavors.

In Murthy v. Missouri, several states and social media users sued President Joe Biden’s administration, claiming that it violated the First Amendment by pressuring the major social media platforms into suppressing what the administration deemed misinformation about the COVID-19 vaccines and the 2020 election. The administration argues that it simply sought to inform and persuade the platforms, which the First Amendment permits.

While the allegations of unconstitutional coercion are much weaker in this case, at least one interaction between the Biden administration and the platforms appears to have crossed the constitutional line (as my organization, the Knight First Amendment Institute at Columbia University, argued in an amicus brief). That interaction involved a heated 2021 email exchange between individuals at Facebook and White House officials, who berated the platform for failing to take down disinformation and then vaguely warned that they were “considering our options on what to do about it.”

In short, the plaintiffs in each lawsuit have a viable First Amendment claim that government officials threatened private parties in an effort to suppress the plaintiffs’ speech.

But the other sides have strong arguments, too.

In 1963, when the Supreme Court decided the case that made clear that the government may not coerce intermediaries (like the platforms) into censoring speech, it also made clear that the government can advise private parties and the public of the government’s views. Lower courts have since drawn a line between coercion (which is unconstitutional) and advice or persuasion (which is constitutional). That line is a crucial one, because it recognizes the right of the public to hear from their government and it recognizes that, to govern, officials must have the ability to attempt to sway public opinion through persuasion.

This principle of persuasion is at work in each of the cases before the Supreme Court, but it’s also at risk. In the Murthy case, for instance, the plaintiffs argue that Biden violated the First Amendment when he accused the platforms, in failing to take down vaccine disinformation, of “killing people.” And they argue that the US Centers for Disease Control and Prevention (CDC) violated the First Amendment by responding to the platforms’ requests for help in determining whether certain posts about COVID-19 were true or false.

Whether or not you agree with the administration’s views on these questions, they were plainly efforts at persuasion, not coercion. In Vullo, the NRA points to New York officials’ public condemnation of the group as part of a coercive campaign targeting its speech. While the NRA is right that Vullo can’t coerce others into silencing the NRA’s speech, public officials are free to condemn the NRA and even to urge others to dissociate from it.

Fortunately, the line of questioning during Monday’s hearing suggests that the Supreme Court is sensitive to the importance of the government being able to express its views to private parties and persuade them to act. A number of justices asked questions that indicate they understand the value of government communications with private actors. In some instances, they reasoned, the government may have exclusive access to valuable information. In others, the government may have a strong interest in preventing harm and protecting public health and safety.

It’s important, then, that in allowing these suits to go forward the Supreme Court reaffirms the important role of the government in being allowed to advocate for its views. As the 2024 election approaches, as gun violence proliferates and as the threat of another pandemic looms, a broad ruling for the plaintiffs at the Supreme Court could preclude government agencies from voicing policy positions on how social media companies should address election disinformation and voter suppression efforts on their platforms.

This includes criticizing powerful groups like the NRA that play a major role in the public debate on gun violence and providing valuable public health information to social media companies as they combat the spread of medical misinformation on their sites.

Such a ruling would diminish our public discourse and disarm our democratically elected government, and underscores why the court should leave space for the government to participate in a free-speech marketplace dominated by powerful companies and interest groups. The health of our democracy depends on it.

Murthy is the first Supreme Court case to address the constitutional framework that applies in jawboning cases since the Court’s 1963 decision in Bantam Books v. Sullivan. In Murthy, social media users and two states sued Biden administration officials and several federal agencies, alleging that government communications with major platforms regarding disinformation violated the First Amendment.

The Institute’s brief, filed in support of neither party, urges the Court to clarify the First Amendment limitations on government efforts to pressure speech intermediaries like the social media platforms into suppressing speech. Specifically, it argues that the Court should:

1. make clear that jawboning claims should be evaluated under the test from Bantam Books, which has been interpreted to draw a line between coercion (unconstitutional) and persuasion (constitutional);
2. articulate the First Amendment interests at stake in jawboning cases, to guide courts in determining whether governmental conduct was coercive; and
3. resolve the case narrowly, without contorting jawboning doctrine in a prophylactic effort to address all of the many challenges created by the centralization of private power over public discourse.

A decision in Murthy v. Missouri is expected in June 2024.

Read the Institute's brief here.