Supreme Court Case Set to Reshape First Amendment Law in the Digital Age

One of the most high-profile and consequential Supreme Court cases this term is Murthy v. Missouri, in which the Court will decide whether the Biden administration violated Americans’ First Amendment rights by colluding with social media companies to censor conservative voices online. No matter which way the Court rules, the case is sure to have far-reaching implications for First Amendment law in the digital age.

The case was originally brought as Missouri v. Biden by then-Attorneys General Eric Schmitt of Missouri and Jeff Landry of Louisiana in May 2022. Schmitt and Landry’s suit alleges that the Biden administration conducted an illegal end-run around the Constitution by pressuring social media companies to censor individuals who were critical of Joe Biden or Democrat policies.

The lawsuit received a major boost following the release of “The Twitter Files,” a series of exposés that appeared to show direct collusion between government actors and “content moderation” teams at social media companies. For instance, Americans learned via The Twitter Files that the FBI handed out top secret security clearance to officials at Twitter and created a special portal where members of the intelligence community could send posts and users to Twitter’s content moderation team for removal.

On July 4 of this year, Judge Terry Doughty issued a preliminary injunction in the Missouri v. Biden prohibiting members of the Biden administration from contacting social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” Despite multiple appeals from the Biden Department of Justice to strike down the injunction, the Fifth Circuit Court of Appeals upheld Doughty’s decision in September.

In October, the Supreme Court lifted the injunction but agreed to hear the case, setting the stage for what could be one of its most important First Amendment decisions in years.

At least three of the justices – Samuel Alito, Neil Gorsuch, and Clarence Thomas – have already strongly indicated that they are inclined to rule against the Biden administration and declare the Big-Government-Big Tech censorship collusion unconstitutional. All three jurists dissented from the Court’s decision to lift the injunction, writing, “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.”

The court’s three liberal justices, Elana Kagan, Sonia Sotomayor, and Ketanji Brown-Jackson, meanwhile, can be expected to rule in the opposite direction, likely citing the liberal bogeyman of “misinformation” as justification for greenlighting government-Big Tech collusion.

The outcome of the case will, then, almost undoubtedly be decided by the three other conservative justices, Brett Kavanaugh, Amy Coney-Barrett, and John Roberts. Although Roberts has developed a reputation for waffling when it comes to standing up for Constitutional principles, Kavanaugh and Coney-Barrett have for the most part been strong defenders of individual liberties.

However, in this case at least two of these justices also joined with the three liberal justices in overturning the lower court ban on communication between the Biden administration and Big Tech companies while the case is pending.

Free speech advocates hope to see Kavanaugh and Coney-Barrett, and perhaps Roberts, unite with Alito, Gorsuch, and Thomas to place some sort of guardrails on what type of communication between the government and Big Tech is permissible under the Constitution. But it remains to be seen how far the Court will go to protect Americans’ First Amendment rights online and how sweeping the Court’s decision will be when it comes to how much input and influence the government can have over what posts and users are removed from online platforms.

One of the central terms to pay attention to in this case is “jawboning,” which the Knight First Amendment Institute at Columbia University defines as “informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation practices.”

The law is currently unclear on what exactly constitutes jawboning and when conversations between government actors and Big Tech employees cross the line from serving the public good to blatant political censorship. One of the most important questions the Court is asked to answer in Murthy is what distinguishes legitimate efforts to persuade private entities to take a certain course of action from an unlawful effort to coerce a private entity to do what the government wants.

Moving forward, whatever standards the Court sets in this case will likely be used by lower courts in other cases dealing with coordination between the government actors and social media companies to decide whether the government violated the First Amendment. If the Court rules as conservatives hope, it will set an important precedent guarding against government-Big Tech collusion to censor the online speech of everyday Americans.

While there is currently no date set for oral arguments, the Court must decide the case by the conclusion of the current term next June. When the ruling is handed down, it will provide the first robust look at how the Court views social media sites in the context of a “digital public square” and what the Court views as legitimate and illegitimate government efforts to influence online speech platforms.

Shane Harris is a writer and political consultant from Southwest Ohio. You can follow him on Twitter @ShaneHarris513.