We don’t know a lot more about when government jawboning social media companies—that is, attempting to pressure them to censor users’ speech— violates the First Amendment; but we do know that lawsuits based on such actions will be hard to win. In Murthy v. Missouri, the U.S. Supreme Court did not answer the important First Amendment question before it—how does one distinguish permissible from impermissible government communications with social media platforms about the speech they publish? Rather, it dismissed the cases because none of the plaintiffs could show that any of the statements by the government they complained of were likely the cause of any specific actions taken by the social media platforms against them or that they would happen again.
As we have written before, the First Amendment forbids the government from coercing a private entity to censor, whether the coercion is direct or subtle. This has been an important principle in countering efforts to threaten and pressure intermediaries like bookstores and credit card processors to limit others’ speech. But not every communication to an intermediary about users’ speech is unconstitutional; indeed, some are beneficial—for example, platforms often reach out to government actors they perceive as authoritative sources of information. And the distinction between proper and improper speech is often obscure.
While the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion.
So, when do the government’s efforts to persuade one to censor another become coercion? This was a hard question prior to Murthy. And unfortunately, it remains so, though a different jawboning case also recently decided provides some clarity.
Rather than provide guidance to courts about the line between permissible and impermissible government communications with platforms about publishing users’ speech, the Supreme Court dismissed Murthy, holding that every plaintiff lacked “standing” to bring the lawsuit. That is, none of the plaintiffs had presented sufficient facts to show that the government did in the past or would in the future coerce a social media platform to take down, deamplify, or otherwise obscure any of the plaintiffs’ specific social media posts. So, while the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion.
The through line between this case and Moody v. Netchoice, decided by the Supreme Court a few weeks later, is that social media platforms have a First Amendment right to moderate the speech any user sees, and, because they exercise that right routinely, a plaintiff who believes they have been jawboned must prove that it was because of the government’s dictate, not the platform’s own decision.
Plaintiffs’ Lack Standing to Bring Jawboning Claims
Article III of the U.S. Constitution limits federal courts to only considering “cases and controversies.” This limitation requires that any plaintiff have suffered an injury that was traceable to the defendants and which the court has the power to fix. The standing doctrine can be a significant barrier to litigants without full knowledge of the facts and circumstances surrounding their injuries, and EFF has often complained that courts require plaintiffs to prove their cases on the merits at very early stages of litigation before the discovery process. Indeed, EFF’s landmark mass surveillance litigation, Jewel v NSA, was ultimately dismissed because the plaintiffs lacked standing to sue.
The main fault in the Murthy plaintiffs’ case was weak evidence
The standing question here differs from cases such as Jewel where courts have denied plaintiffs discovery because they couldn’t demonstrate their standing without an opportunity to gather evidence of the suspected wrongdoing. The Murthy plaintiffs had an opportunity to gather extensive evidence of suspected wrongdoing—indeed, the Supreme Court noted that the case’s factual record exceeds 26,000 pages. And the Supreme Court considered this record in its standing analysis.
While the Supreme Court did not provide guidance on what constitutes impermissible government coercion of social media platforms in Murthy, its ruling does tell us what type of cause-and-effect a plaintiff must prove to win a jawboning case.
A plaintiff will have to prove that the negative treatment of their speech was attributable to the government, not the independent action of the platform. This accounts for basic truths of content moderation, which we emphasized in our amicus brief: that platforms moderate all the time, often based on their community guidelines, but also often ad hoc, and informed by input from users and a variety of outside experts.
When, as in this case, plaintiffs ask a court to stop the government from ongoing or future coercion of a platform to remove, deamplify, or otherwise obscure the plaintiffs’ speech—rather than, for example, compensate for harm caused by past coercion—those plaintiffs must show a real and immediate threat that they will be harmed again. Past incidents of government jawboning are relevant only to predict a repeat of that behavior. Further, plaintiffs seeking to stop ongoing or future government coercion must show that the platform will change its policies and practices back to their pre-coerced state should the government be ordered to stop.
Fortunately, plaintiffs will only have to prove that a particular government actor “pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff ’s speech on that topic.” Plaintiffs do not need to show that the government targeted their posts specifically, just the general topic of their posts, and that their posts were negatively moderated as a result.
The main fault in the Murthy plaintiffs’ case was weak evidence that the government actually caused a social media platform to take down, deamplify, or otherwise obscure any of the plaintiffs’ social media posts or any particular social media post at all. Indeed, the evidence that the content moderation decisions were the platforms’ independent decisions was stronger: the platforms had all moderated similar content for years and strengthened their content moderation standards before the government got involved; they spoke not just with the government but with other outside experts; and they had independent, non-governmental incentives to moderate user speech as they did.
The Murthy plaintiffs also failed to show that the government jawboning they complained of, much of it focusing on COVID and vaccine posts, was continuing. As the Court noted, the government appears to have ceased those efforts. It was not enough that the plaintiffs continue to suffer ill effects from that past behavior.
And lastly, the plaintiffs could not show that the order they sought from the courts preventing the government from further jawboning would actually cure their injuries, since the platforms may still exercise independent judgment to negatively moderate the plaintiffs’ posts even without governmental involvement.
The Court Narrows the Right to Listen
The right to listen and receive information is an important First Amendment right that has typically allowed those who are denied access to censored speech to sue to regain access. EFF has fervently supported this right.
But the Supreme Court’s opinion in Murthy v. Missouri narrows this right. The Court explains that only those with a “concrete, specific connection to the speaker” have standing to sue to challenge such censorship. At a minimum, it appears, one who wants to sue must point to specific instances of censorship that have caused them harm; it is not enough to claim an interest in a person’s speech generally or claim harm from being denied “unfettered access to social media.” While this holding rightfully applies to the States who had sought to vindicate the audience interests of their entire populaces, it is more problematic when applied to individual plaintiffs. Going forward EFF will advocate for a narrow reading of this holding.
As we pointed out in our amicus briefs and blog posts, this case was always a difficult one for litigating the important question of defining illegal jawboning because it was based more on a sprawling, multi-agency conspiracy theory than on specific takedown demands resulting in actual takedowns. The Supreme Court seems to have seen it the same way.
But the Supreme Court’s Other Jawboning Case Does Help Clarify Coercion
Fortunately, we do know a little more about the line between permissible government persuasion and impermissible coercion from a different jawboning case, outside the social media context, that the Supreme Court also decided this year: NRA v. Vullo.
InNRA v. Vullo, the Supreme Court importantly affirmed that the controlling case for jawboning is Bantam Books v. Sullivan
NRA v. Vullo is a lawsuit by the National Rifle Association alleging that the New York state agency that oversees the insurance industry threatened insurance companies with enforcement actions if they continued to offer coverage to the NRA. Unlike Murthy, the case came to the Supreme Court on a motion to dismiss before any discovery had been conducted and when courts are required to accept all of the plaintiffs’ factual allegations as true.
The Supreme Court importantly affirmed that the controlling case for jawboning is Bantam Books v. Sullivan, a 1963 case in which the Supreme Court established that governments violate the First Amendment by coercing one person to censor another person’s speech over which they exercise control, what the Supreme Court called “indirect censorship.”
In Vullo, the Supreme Court endorsed a multi-factored test that many of the lower courts had adopted, as a “useful, though nonexhaustive, guide” to answering the ultimate question in jawboning cases: did the plaintiff “plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech?” Those factors are: (1) word choice and tone, (2) the existence of regulatory authority (that is, the ability of the government speaker to actually carry out the threat), (3) whether the speech was perceived as a threat, and (4) whether the speech refers to adverse consequences. The Supreme Court explained that the second and third factors are related—the more authority an official wields over someone the more likely they are to perceive their speech as a threat, and the less likely they are to disregard a directive from that official. And the Supreme Court made clear that coercion may arise from ither threats or inducements.
In our amicus brief in Murthy, we had urged the Court to make clear that an official’s intent to coerce was also highly relevant. The Supreme Court did not directly state this, unfortunately. But they did several times refer to the NRA as having properly alleged that the “coercive threats were aimed at punishing or suppressing disfavored speech.”
At EFF, we will continue to look for cases that present good opportunities to bring jawboning claims before the courts and to bring additional clarity to this important doctrine.
