WASHINGTON—The U.S. Supreme Court today reversed the Fifth Circuit’s ruling in Murthy v. Missouri, restricting the Biden administration’s communications with social media platforms regarding content moderation, and remanded the case for further review. The case considered whether federal officials violated the First Amendment by pressuring—or “jawboning”—the social media companies into removing apparent misinformation relating to public health and the 2020 U.S. elections. The Knight First Amendment Institute at Columbia University filed an amicus brief in the case in support of neither party, which was referenced by justices during the argument.

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, [email protected].