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In Supreme Court Jawboning Case, NetChoice Asks the Court to Protect the First Amendment

WASHINGTON—Today, NetChoice and the Computer & Communications Industry Association (CCIA), joined by the Cato Institute and Chamber of Progress, filed an amicus brief at the Supreme Court supporting neither party in the case Murthy v. Missouri.

Murthy, formerly called Missouri v. Biden, is a lawsuit alleging that the Biden administration improperly pressured social media companies—through private emails and otherwise— into removing conservative viewpoints during the Covid-19 pandemic. Informal government efforts like these to influence private editorial discretion are known as “jawboning.”

The states of Missouri and Louisiana argued that the Biden administration’s efforts to exert influence over private companies’ content moderation decisions successfully restricted information from Missourians and Louisianans on the internet. This, the states claim, violated their First Amendment rights. 

Our brief takes no position on the primary question of this case: whether the Biden Administration’s communications with social media services likely violated the First Amendment. Instead, we filed this brief to highlight three points regarding social media services’ rights:

  1. First, the First Amendment prohibits the government from compelling private editorial decisions. This protection would be meaningless if governments could compel private speech, including content moderation, through informal cajoling. A clear rule is needed to prevent such a loophole;
  2. Second, when the government “jawbones” social media companies, the company itself suffers a First Amendment injury; and
  3. Third, regardless of whether the Court finds that the Biden Administration likely violated the First Amendment in this case, it should clarify that social media services are not state actors in jawboning cases and, thus, should not be held liable for the government’s actions.

“The First Amendment prohibits the government from censoring, compelling or otherwise abridging speech, whether that speech happens on or offline. It also protects private digital services’ decisions about which user content to publish or remove,” said Nicole Saad Bembridge, Associate Director of the NetChoice Litigation Center. “We ask the Court for a decision in Murthy v. Missouri that safeguards both of these critical protections.”

You can read NetChoice’s amicus curiae brief with CCIA, Cato, and Chamber of Progress here.

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