Last week, a federal district court issued an order allowing a lawsuit against the Biden administration for “jawboning” social media services to proceed to trial—the first case of its kind to do so. Government efforts to suppress users’ free expression is a growing problem that should be taken seriously. Yet the court’s order in this case includes incorrect and damaging statements that could backfire for Americans’ free speech online, including about Section 230’s critical protections.
Jawboning occurs when government officials try to inappropriately and informally influence private businesses’ and organizations’ content moderation decisions. As Will Duffield of the Cato Institute explained in a recent essay, “Jawboning occurs when a government official threatens to use his or her official power — be it the power to prosecute, regulate, or legislate — to compel” social media platforms into making certain content moderation decisions.
The Missouri v. Biden litigation began in May 2022, when Missouri and Louisiana sued President Joe Biden and several other federal officials, alleging – among other things – that they violated the First Amendment by coercing social media platforms to remove certain viewpoints on Covid-19. Examples of the Biden administration’s coercion included DHS’s “Disinformation Governance Board” and Democrats’ ongoing threats to repeal Section 230 if the platforms did not “get a handle” on “misinformation.” The states argued that the federal government’s jawboning efforts affected Meta and Twitter’s content moderation decisions, ultimately transforming the private content removal into government’s own censorship.
After their initial complaint, the court granted plaintiffs expedited discovery to depose high-ranking executive officials, like Dr. Anthony Fauci, about their attempts to influence content moderation. The government then filed a motion to dismiss the case, arguing that plaintiffs did not have standing to bring the lawsuit in the first place, and that their state action theory – that jawboning transformed services’ removal of Covid-19 “misinformation” into the government’s own actions – was baseless.
The court has now denied the government’s arguments in favor of dismissal. Its order explains that the plaintiffs sufficiently alleged “significant encouragement and coercion that converts the otherwise private conduct of censorship on social-media platforms into state action” for the case to go to trial. In explaining its decision, the court distinguished Missouri v. Biden from the many similar jawboning lawsuits previously dismissed by federal courts, including Changizi v. HHS (in which NetChoice filed an amicus brief) and AAPS v. Schiff.
In those cases, the courts found that plaintiffs had “. . .failed to ‘establish a chronological chain of causation between’ [the government’s] actions and Twitter’s disciplinary measures” and “the mere temporal closeness of the [government’s] statements and the Twitter censorship” failed to establish causation, which the Constitution requires to have standing in federal court.
In Missouri v. Biden, however, this district court wrote that “Plaintiffs have alleged the full picture: a cohesive and coercive campaign by the Biden Administration and all of the Agency Defendants to threaten and persuade social media companies to more avidly censor so-called ‘misinformation’…while the Changizi plaintiffs may have left gaps in their pleadings, Plaintiffs in the current case have not.”
It may be true that the plaintiffs in this case produced a more persuasive complaint than previous jawboning litigants did. But plaintiffs don’t need to pursue state action theory in jawboning lawsuits to get an adequate First Amendment remedy from the government. As NetChoice explained in our amicus brief supporting neither party in Changizi v. HHS:
In jawboning cases against the government, “aggrieved users may hold the government liable for First Amendment violations in the absence of private ‘state action.’ In First Amendment cases, there is a low threshold for suits against government agencies and officials that launder censorship through private intermediaries, like social media.”
For example, in Bantam Books v. Sullivan and Backpage v. Dart, the Supreme Court and Seventh Circuit Court of Appeals respectively found in favor of jawboning plaintiffs without state action theory.
If courts find that jawboning transforms private services into state actors, it risks those services being forced to immediately reinstate accounts or content they may have independently chosen not to host – itself a potential First Amendment violation. There are many reasons why Twitter would, by itself, decide to remove content contradicting the CDC’s guidelines on Covid-19, including a fear of losing revenue from advertisers or other users or a genuine belief that it should prioritize tackling the spread of that information.
Similarly worrying in the court’s order is its conclusion that “Section 230’s immunity constitutes…‘tangible financial aid’” for “Big Tech” that “has a significant tendency to facilitate, reinforce, and support private” censorship. This, according to the district court, should “serve as another basis for finding government action” in services’ content moderation decisions.
But Section 230 is a rule of civil procedure – by definition not a subsidy. And the law protects us all, not just “Big Tech.” Indeed, a federal district court just clarified that Section 230’s shield applies when academics send articles by email, and Justice Amy Coney Barrett recently emphasized its critical protection for users’ own likes and retweets during oral arguments in Gonzalez v. Google.
Further, the court’s idea that Section 230’s existence weighs in favor of applying state action doctrine to private content moderation decisions is a radical departure from existing doctrine. Courts have never before found that a liability shield like Section 230 contributes to a finding that private actors’ content moderation decisions were actually the state’s, and for good reason: it is irrelevant.
The presence of government coercion is, of course, the operative element in any jawboning state action case, but the fact that a statute exists to bar private lawsuits over content moderation decisions does not suggest, in any way, that an online service was coerced by the government into making those decisions. Accordingly, when assessing state action claims, courts have historically only looked at factors like the degree of pressure exerted on the private actor by the government, including whether the government ever made threats of adverse regulatory action for failure to comply with its requests.
The district court’s order in Missouri v. Biden is important. It will likely serve as persuasive authority when other federal courts hear similar jawboning complaints against the government in coming months. The Ninth Circuit and Sixth Circuit will soon hear Trump v. Twitter and Changizi v. HHS, respectively. NetChoice is engaging with these cases; we filed amicus briefs in support of online free expression in both.