The Supreme Court will soon hear what may be the most important case of the term, one that epitomizes the broken political culture of our time. Murthy v. Missouri involves, in the words of the district court that first took it up, “the most massive attack against free speech in United States history.” Missouri, Louisiana, and other state, individual, and associational plaintiffs have uncovered substantial evidence of the federal government coercing and otherwise pressuring social media companies to take down constitutionally protected speech.
The plaintiffs sued in May 2022, after revelations by White House press secretary Jen Psaki that federal officials “are in regular touch with these social media platforms” to push the tech companies to take down discussions of COVID-19 policy and other issues of national concern. The discovery process of litigation produced more than 20,000 pages of documents that showed repeated, systematic instances of the government using strong-arm tactics to pressure tech companies into deleting speech.
For example, after badgering Google for what the White House viewed as insufficient action, National Digital Strategy Director Rob Flaherty emailed the company to state that his concern was “shared at the highest (and I mean the highest) levels of the WH,” implying that President Joe Biden was involved. Censored topics included “racial justice, the U.S. withdrawal from Afghanistan, and the return of U.S. Support of Ukraine.”
The district court, after finding that the federal government used “unrelenting pressure” to suppress “millions of protected free speech postings by American citizens,” entered an injunction against the public-private collusion. The Fifth Circuit Court of Appeals affirmed this ruling, narrowing the list of officials covered by the injunction but noting that the government had engaged in a “coordinated campaign . . . orchestrated by federal officials that jeopardized a fundamental aspect of American life.”
The Supreme Court agreed to hear the case, with the government coming in guns blazing to ask the justices to reverse the Fifth Circuit and allow administration officials to again communicate with tech executives over these issues. It would be worrying indeed if the White House prevailed because Murthy involves a profound attack on free speech by “jawboning” government officials.
Jawboning occurs when the government applies pressure on private companies to take certain actions. Regarding social media, elected and appointed officials increasingly demand that platforms refrain from publishing disfavored speech or to limit its spread. Sometimes they threaten tech companies with punitive legislation and antitrust investigations. But the pressure can also be more informal, cajoling these private actors to curry favor with powerful people. Sometimes Big Tech and companies in other spheres are more than happy to do the government’s bidding because the individual corporate actors agree with those policies—but that willing cooperation doesn’t lessen the First Amendment injury.
That’s why I filed an amicus brief on behalf of my organization, the Manhattan Institute, supporting the challengers. MI’s brief conveys our opposition to regulatory capture and our commitment to free and open public discourse more broadly.
We also partnered with React19 — a patient-advocacy organization dedicated to providing physical, emotional, and financial support for those suffering lasting side effects from COVID-19 vaccination — along with three vaccine-injured individuals, to highlight the importance of scientific debate.
These victims suffered a loss of community, an inability to share medical advice, suspension of their access to social media generally, and erasure of their shared personal stories and memorials to loved ones. Their speech was silenced, their posts were removed, and they suffered the loss of followers and reputational damage.
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The censorship experienced by vaccine-injured Americans demonstrates the importance of ensuring that the government plays no role in regulating constitutionally protected speech, either directly or acting in concert with private-sector actors. And such governmental suasion and coercion are especially worrying when the speech at issue concerns science.
Collusion between the federal government and social media platforms warps public discourse and threatens a free marketplace of ideas. In Murthy v. Missouri, which will be argued on March 18, a Supreme Court that’s been strong on speech protections can reinforce the First Amendment for the digital age.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of the forthcoming Lawless: The Miseducation of America’s Elite. He also writes the Shapiro’s Gavel newsletter on Substack.
