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NetChoice Hopes to See Supreme Court Protect First Amendment in Government Coercion Case

WASHINGTON—Today, the U.S. Supreme Court will hear oral arguments in a high-profile case related to government coercion on social media, Murthy v. Missouri

Murthy, formerly called Missouri v. Biden, is a lawsuit about whether the Biden administration unconstitutionally pressured social media companies—through private emails or otherwise— into removing conservative viewpoints during the Covid-19 pandemic. These efforts by the government are known as “jawboning.”

The states of Missouri and Louisiana argue that the Biden administration’s “jawboning” effectively suppressed their citizens’ viewpoints and restricted the content all Americans were able to view on social media. This, the states claim, violated their First Amendment rights. 

“As Justice Kavanaugh recently noted in the NetChoice & CCIA cases, the First Amendment prohibits the government from censoring, compelling or otherwise abridging private speech. This principle holds whether the government acts directly or indirectly. Yet Murthy implicates multiple, competing free speech interests: the online speech intermediaries’, the social media users’, the government’s, and the general public’s,” said Nicole Saad Bembridge, Associate Director of the NetChoice Litigation Center. “We hope the Court will articulate a clear rule to stop unchecked jawboning from undermining free expression on the internet, yet tread carefully to ensure the law properly safeguards multiple, critical interests.”

NetChoice submitted an amicus brief in Murthy, supporting neither party. Our brief with the Computer & Communications Industry Association (CCIA), Chamber of Progress and the Cato Institute highlights three main points:

  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.

You can read NetChoice’s amicus brief with CCIA, Chamber of Progress and Cato in Murthy v. Missouri here.

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