Supreme Court to Examine Social Media Content Moderation as State Action

In Murthy v. Missouri, the Supreme Court will decide whether interactions with federal government officials transformed social media content moderation decisions into state action and whether those decisions violate the First Amendment.

Petitioners are Surgeon General Vivek Murthy and other federal government officials who were sued in their official capacities because of interactions they had with social media platforms regarding certain types of content, mainly related to the COVID-19 pandemic and the 2020 election. Respondents are the state of Missouri, the state of Louisiana, and five individuals claiming deprivation of their right to free speech by content moderation decisions on certain social media platforms. They alleged that their accounts or posts were removed or downgraded by social media content moderation decisions that were done at the direction of federal government officials. The states and individuals named 67 federal entities, officials, and employees in their suits.

The district court, after extensive discovery, granted a preliminary injunction, finding that some defendants had violated the states’ and individuals’ First Amendment rights by coercing and significantly encouraging platforms’ content moderation activities. The preliminary injunction limited how federal officials could interact with social media companies in urging or encouraging the suppression or deletion of content. But the injunction had a series of carveouts allowing such communications if they involved criminal activity or national security threats. The federal government appealed. The Fifth Circuit vacated part of the injunction and modified the rest, concluding that: (1) the states and individuals had standing to sue, (2) the federal government had violated the claimants’ First Amendment rights by making threats, using a coercive “tone” in their communications, and entangling themselves in the platforms’ decision-making process, and (3) equitable considerations made a preliminary injunction appropriate.

In its Supreme Court briefing, the federal government argued that the claimants lacked Article III standing because they had not shown cognizable injuries traceable to the federal government. They also argued that government communications with social media platforms did not transform the content moderation decisions into state action, but were instead part of the government’s function of informing entities and persuading them to act. Finally, the federal government argued that the injunction contravenes equitable principles because it is overbroad and vague. In response, the states and individuals argued that they have standing based on their injuries stemming from the censorship, the federal government violated the First Amendment through its relentless pressure to push social media companies to suppress citizens’ free speech postings, and the injunction is not overbroad.

During oral argument, Justice Sotomayor questioned how the injunction would harm the federal government, and questioned the scope of the injunction. Justice Alito focused on the standing issue and questioned the level at which the traceability of the alleged First Amendment injuries as caused by the federal government needed to be examined for standing purposes. Justice Gorsuch also questioned what standard was appropriate to show injury for standing purposes. Justices Kagan and Jackson questioned what conduct the government could legally engage in that could abridge the freedom of speech. Chief Justice Roberts questioned how there could be coercion here in light of the fact that the federal government is not monolithic and often has competing interests.

The case was argued on March 18, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s forthcoming opinion.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, A. Joseph Duffy, IV., or Heming Xu.