Free Speech Online at Risk? Implications of the Murthy v. Missouri Decision
Free speech has been a prevalent issue in 2024. This year, we have already seen threats to free speech on college campuses across the country, and now, potential threats to protected First Amendment speech on the internet. Meta CEO Mark Zuckerberg recently penned a letter to Congress confirming that his company was the target of a government jawboning operation to limit unfavorable speech online.
Zuckerberg’s bombshell letter came on the heels of a highly anticipated speech case at the Supreme Court earlier this year in Murthy v. Missouri. Originally filed as Missouri v. Biden, state AGs in Missouri and Louisiana sought to prevent federal agents—including White House aides and agency officials like the FBI, CDC, and the Department of Homeland Security—from unconstitutionally coercing social media platforms to remove or restrict protected First Amendment speech on the government’s behalf.
Official actors were accused of orchestrating a coordinated campaign to restrict online content in conflict with the government’s position, especially posts relating to the COVID-19 pandemic and other sensitive subjects such as the Hunter Biden laptop story. To back up this claim, respondents presented documentation and testimony in prior legal proceedings demonstrating the U.S. government’s unprecedented, coordinated, multi-agency effort to pressure social media platforms to obey their post removal or censorship requests.
Far beyond the more traditional use of the presidential “bully pulpit” to persuade the public, it was revealed that Administration officials held standing meetings with social media company staff to monitor progress on their moderation efforts, and often badgered them with repeated follow up communications, sometimes threatening to increase regulatory scrutiny or even abolish vital Section 230 protections if they did not comply voluntarily.
The petitioners in this case—representatives of the federal government, including U.S. Surgeon General Vivek H. Murthy—countered by insisting that the Administration was merely acting to protect the public from what they view as the spread of “misinformation” online. Deputy Solicitor General Brian Fletcher encouraged SCOTUS to quickly dispense with the case due to a lack of standing, sidestepping the merits question of government coercion altogether.
However, Zuckerberg’s letter to Congress tells a different story, revealing that “Senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content [in 2021], including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree.” He also stated he “believe[s] the government pressure was wrong” and “regret[s] that [he was] not more outspoken about it.”
Ultimately, the Court ruled 6-3 that the plaintiffs did not present enough evidence that the censorship of posts by social media platforms was due to threats from the Biden Administration; therefore, they lacked standing to sue.
Justice Samuel Alito dissented, stating that there was more than enough evidence to establish standing to sue, and that while the censorship in the case was more “subtle” than others, such as NRA v. Vullo, which the Court also recently decided, it was “no less coercive.” Alito feared that these two decisions send a message that “[i]f a coercive campaign is carried out with enough sophistication, it may get by.”
ALEC’s Approach to Protecting Online Free Speech
ALEC members are staunch defenders of the First Amendment, which expressly prohibits the government from curbing the free speech rights of Americans. Recognizing this fact, members of our Communications and Technology Task Force adopted a model resolution in 2022 encouraging Congress to prohibit federal employees from using their official positions to censor speech or coerce social media platforms to censor speech on their behalf. It also urges Congress to perform robust oversight and hold executive agencies accountable for any attempts to censor protected speech.
The First Amendment was designed to prevent the government from encroaching on Americans’ right to freedom of speech. When a government actor uses their official capacity to coerce social media platforms into deleting content they disagree with, this is government censorship by proxy.
While supporters argue that “misinformation” is harmful and ought to be removed from social media platforms, the answer cannot be government censorship of speech, especially when what is deemed “misinformation” can be highly subjective.
The Supreme Court has long abided by the Counterspeech Doctrine – a principle that the solution to bad speech is more speech, not censorship or “enforced silence” as Justice Louis Brandeis put it. One example of an approach taken by a social media platform to ensure users see accurate information without censorship is X’s (formerly Twitter) use of Community Notes. This feature allows social media users to add additional context and “fact check” each other’s posts on the platform. These notes are written and voted on by X users, rather than a moderation team, and are only shown when agreed upon by enough voters with diverse perspectives.
The X case study demonstrates that it is possible to improve the quality of information on the internet without censorship or government intervention. Not only does government censorship violate Americans’ First Amendment rights, but it fails to achieve the stated goal of countering “misinformation,” prevents opposing views from being heard, and sets a dangerous precedent of allowing government to silence dissenting views.