49. "Jawboning" and Social Media in the (Dis)information Age
There's a lot going on in Murthy v. Missouri. At its core, the question is whether courts can draw a meaningful line between government persuasion and government coercion—especially in advance
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Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):
On the Docket
For just the second week of the term, the Court has been pretty busy over the past seven days—and not just by releasing the argument calendar for its December 2023 session. On Tuesday, the justices granted Texas’s emergency application to lift a lower-court stay of the impending execution of Jedidiah Murphy—over public dissents from Justices Sotomayor, Kagan, and Jackson. The first grant of emergency relief this term was also the tenth time since Justice Ginsburg’s death three years ago that the Court has granted relief to a state or the federal government to un-block an execution (versus only two grants of relief to block an execution during the same time span). There was no opinion by either the justices in the majority or the dissenters.
Individual justices also granted two administrative stays last week. The first, by Chief Justice Roberts, temporarily recalled and froze the D.C. Circuit’s mandate in a challenge to the Department of the Interior’s 2021 approval of a gaming compact between Florida and the Seminole Tribe. At the heart of the dispute is whether the compact lawfully authorizes electronic gaming (including sports betting) by individuals in Florida not located on tribal land. The D.C. Circuit saw no issue with the Secretary of the Interior’s approval of the compact, and the challengers have sought a stay pending the filing and disposition of a cert. petition. The Chief Justice gave the federal government until 5:00 p.m. (ET) this Wednesday to respond.
And Justice Samuel Alito issued another administrative stay in Murthy v. Missouri—the Biden administration’s request for emergency relief from a lower-court injunction that blocks a wide range of contacts between senior government officials and various social media providers. (More on this dispute below.) Alito’s stay is set to expire at 5:00 p.m. (ET) this Friday, although he has already extended a prior administrative stay in this case once. Presumably, a decision (with some writing) is coming soon, but how soon remains to be seen.
Finally, the Court on Friday granted certiorari in four more cases, all of which will likely be argued early next year. The highlight of the four is probably Relentless, Inc. v. Dep’t of Commerce, another challenge to the concept of “Chevron deference” in administrative law (the idea that, where a statute delegating authority to an administrative agency is ambiguous, courts should defer to the agency’s resolution of the ambiguity so long as the agency’s interpretation is “reasonable”). The Court already has a similar case, Loper Bright, on the docket for this term. But Justice Jackson is unable to participate in Loper Bright, so it seems likely that the justices added a second case to ensure that a full bench would be able to resolve the continuing vitality of Chevron. (More on Chevron and these cases in a future issue.)
The Court is off the bench this week, after wrapping the first argument session of the October 2023 Term last Wednesday. (The next argument is two weeks from today.) But between the two disputes summarized above and the other emergency applications I summarized last week that are (or, by the end of today, will be), ripe, it’s likely to be a busy week at least with respect to emergency applications. And either way, we expect a regular order list coming out of last Friday’s Conference at 9:30 a.m. (ET) this morning.
The One First “Long Read”: Government Jawboning and Misinformation
Later this term, the Supreme Court is set to consider Florida and Texas laws that purport to limit the extent to which large social media companies may moderate the content of their platforms. Those cases are likely to be a major referendum on the circumstances in which the First Amendment protects non-governmental social media companies against that kind of government coercion (and whether the companies themselves ought to be viewed as more akin to “common carriers,” over which the government has more regulatory leeway). But before we get to those cases, the justices will shortly have to resolve an emergency application from the Biden administration in a case that raises something of the flip-side of that coin: At what point do government officials cross the line between persuading social media companies to take down or otherwise suppress content that the government views as dangerous (“jawboning,” which does not turn the companies’ ensuing actions into “state action”), and coercing them into doing so (which does, triggering constitutional scrutiny)?
The underlying lawsuit in this case, unhelpfully captioned Missouri v. Biden (and filed in a … random … district court in Louisiana),1 claims that a wide array of Biden administration officials crossed this line (and continue to cross it) on a regular basis when they sought to suppress the spread of dis- and misinformation about the COVID pandemic and COVID vaccines. Trump-appointed district judge Terry Doughty largely sided with the plaintiff-states (whose standing is a question unto itself), concluding that the evidence supported the claim that the White House, FBI, Surgeon General, CISA, and various other agencies and officials had all crossed the constitutional line into coercion. But standing aside, there are two major problems with Judge Doughty’s analysis.
First, the examples of “coercion” seem like anything but. As the Supreme Court has long suggested, to cross the line into coercion, the government’s requests have to come with at least a meaningful chance of retribution or other punishment if the requestee doesn’t comply. If the government tells me to do something, but I know I’ll suffer no consequence for ignoring it, then my choice to comply doesn’t become “state action” simply because it comes from the government (even in the most strident tones). But here are some of the examples Judge Doughty relied upon (as compiled by Mayze Teitler in this post for Just Security):
Meetings and communications between government officials and platform employees to discuss the platforms’ enforcement of content moderation policies related to COVID-19 (e.g., meetings between State Department leaders and social media companies to discuss “tools and techniques” to stop the spread of disinformation, and for the platforms and the state department to compare prevalent foreign propaganda and information they were seeing on the sites);
The use of “trusted partner” portals created by the platforms, which sought government assistance in identifying violations of the platforms’ content policies (e.g., Twitter offering to enroll Center for Disease Control (CDC) officials in a portal it had created to identify inaccurate content);
Public and private statements ranging from general condemnation of the platforms’ failure to adequately address misinformation (e.g., White House Press Secretary Jen Psaki’s statement that the administration wanted “every platform to continue doing more to call out” “mis- and disinformation while also uplifting accurate information”) to private emails identifying specific accounts and posts that spread inaccurate information the government wanted removed (e.g., after Twitter reached out to the CDC to ask if an account purporting to be Anthony Fauci was “real or not,” a National Institutes of Health official responded “Fake/Imposter handle. PLEASE REMOVE!!!”).
And although there was some suggestion at some point that the government might revisit the scope of immunity under section 230 of the Communications Decency Act, that would, quite obviously, require a statutory amendment; it’s hardly something the executive branch could do on its own. Unless I’m missing it, there’s no evidence that any criminal prosecution was threatened, or civil fines held out as possible consequences, if the social media companies receiving these requests declined to cooperate. (Indeed, it is telling that red states, and not the social media companies, are the plaintiffs here.)
Second, and in any event, the injunction relies upon these COVID-based examples to enjoin a broad array of contact between government officials and social media companies going forward related to the combatting of any dis- or misinformation. It’s stunningly (and unprecedently) broad not just in the number of senior government officials to whom it applies, but the range of activities and communications that it prohibits them from undertaking. More than that, it’s a prior restraint of speech—the type of injunction that, historically, has required the most compelling justification. (Damages, in contrast, don’t require nearly so much of a showing.)
Perhaps that’s why the Fifth Circuit reversed or vacated a large chunk of Judge Doughty’s injunction. But it left intact the core—refusing to stay the injunction as modified to read:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
It is from this provision that the Biden administration is seeking emergency relief—stressing the unprecedented nature of the restriction; the extent to which it could hamper the government from carrying out urgent national security-related activities; and a number of other respects in which the lower courts erred.
There’s a lot of good writing out there already about the difficulty of drawing a bright line between persuasion and coercion in this precise context. I’m especially partial to Genevieve Lakier’s take at Lawfare, and her conclusion that “Rather than decrying these efforts as patently unconstitutional, or embracing them as an unproblematic exercise of the government’s supervisory power, they should be treated as an opportunity to think more deeply about what kinds of rules are necessary to protect free speech values in a public sphere in which both private entities and government officials possess considerable power to determine who can and cannot speak.”
Perhaps in slightly stronger terms than Lakier, I’ll confess that it seems to me that there really ought to be some meaningful quantum of evidence that retribution for non-compliance is both possible and intended before that line is crossed. But it also seems like, however that line is going to be drawn, it should be in a suit (1) in which the party whose speech was directly affected is the plaintiff; and (2) seeking retrospective, rather than prospective, relief, at least until and unless there is some evidence of a more systemic pattern of behavior by the same defendants (and not just “the government”). Otherwise, the type of injunction issued here risks doing far more harm than the harm that justifies it in the first place.
At the very least, it seems like the balance of the equities here tilts strongly in the federal government’s favor—such that a stay pending an expedited consideration of the merits of the Biden administration’s appeal would not be a shocking result. If nothing else, though, it should be obvious that an emergency application with limited briefing is perhaps not the ideal vehicle through which to conclusively settle a debate that has divided even the smartest and most conscientious free speech scholars for decades.
SCOTUS Trivia: Case Captions
As we continue to see a proliferation of cases in which the caption is some variation of [State] v. [President], it seems worth at least wondering out loud if it would be useful to instead use popular names for cases, as various Supreme Court reporters historically have done. Consider, for instance, The Slaughter-House Cases; The Civil Rights Cases; The Lottery Case; The Selective Draft Law Cases; and everyone’s favorite—The Passenger Cases.
There’s no hard-and-fast rule about the caption that appears in the official report of the decision—the United States Reports. But it’s been quite some time since these kinds of popular names were in vogue. Maybe this could be the rare silver lining from the proliferation of these kinds of suits.
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Happy (holiday) Monday, everyone. I hope that you have a great week.
Not to be confused with the student loan case, Nebraska v. Biden, which was filed in Missouri.
I wonder what would happen if the government encouraged other media to blast social media for misinformation--eg MSM vs Twitter. Much harder to argue coercion, wouldn't it be?