Murthy v. Missouri

Murthy v. Missouri (originally filed as Missouri v. Biden) is a case pending in the Supreme Court of the United States involving the First Amendment, the federal government and social media. The states of Missouri and Louisiana, led by Missouri's then attorney general Eric Schmitt, filed suit against the U.S. government in the Western District of Louisiana. They claimed that the federal government was censoring conservative views and criticism of the Biden administration in violation of the freedom of speech by asking social media services to remove purported misinformation.

Murthy v. Missouri
Supreme Court of the United States
Full case nameVivek H. Murthy, Surgeon General, et al. v. Missouri, et al.
Docket no.23-411
Case history
PriorMotion for preliminary injunction granted in part and denied in part, Missouri v. Biden, No. 22-cv-1213 (W.D. La., July 4, 2023); injunction affirmed in part, reversed in part, vacated in part, and modified in part, No. 23-30445 (5th Cir., October 3, 2023); injunction stayed and certiorari granted sub nom. Murthy v. Missouri, 601 U.S. ____ (October 20, 2023).
Questions presented
(1) Whether respondents have Article III standing; (2) Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) Whether the terms and breadth of the preliminary injunction are proper.

On July 4, 2023, Judge Terry A. Doughty issued a preliminary injunction against several agencies and members of the Biden administration from contacting social media services to request the blocking of material, with exceptions for material involving illegal activity. On appeal, the Fifth Circuit Court of Appeals found that there had been some coercion in the government's contact with social media companies in violation of the First Amendment, but narrowed the extent of Doughty's injunction to block any attempts by the government to threaten or coerce moderation on social media. The United States Supreme Court initially stayed the Fifth's order, then granted review of the case by writ of certiorari. It is set to be heard during the 2023–24 term.

Background

Since around 2020, Missouri Attorney General (at the time) Eric Schmitt had been filing numerous lawsuits against the Biden administration, with a total of 25 suits as of October 2022. According to Schmitt's senate campaign website, these suits were filed to hold the Biden administration accountable, while Schmitt later said "The Attorney General's Office standing in between Missourians and a radical, overreaching government is a hallmark of federalism, and states have a vital duty to keep the federal government in check."[1] Targets of Schmitt's lawsuits included the administration's policies on oil and gas production, Biden's planned debt forgiveness of student loans, and mask mandates during the COVID-19 pandemic.[1] Missouri v. Biden was one of several high-profile lawsuits Missouri Attorney General Eric Schmitt filed against the Biden administration.[1][2]

In 2022, Elon Musk bought out Twitter and significantly altered the way it operated. He also worked with independent journalists to release the "Twitter Files", a series of internal communications that Musk and the journalists assert show that parts of the U.S. government were working with Twitter to suppress free speech related to election fraud and misinformation about the pandemic.[3][4] While legal analysts, speaking with The New York Times, believed that the steps Twitter took to moderate content after contact by the U.S. government were not censorship, many Republicans believed the Twitter Files proved their views were being censored.[5] The Republican-controlled House of Representatives held a set of hearings in March 2023 about the Biden administration "weaponizing" social media for its own purposes. Schmitt (now a U.S. senator) and Louisiana Attorney General Jeff Landry were among those who testified before the committee with information from their case's discovery process, bringing their ongoing lawsuit greater public attention.[6][7]

Filing and depositions

The lawsuit alleges that that President Joe Biden and his administration were "working with social media giants such as Meta, Twitter, and YouTube to censor and suppress free speech, including truthful information, related to COVID-19, election integrity, and other topics, under the guise of combating 'misinformation'."[8] The lawsuit was co-filed with Louisiana's attorney general Jeff Landry in May 2022 in the United States District Court for the Western District of Louisiana. Additional plaintiffs were added several months later, including Jim Hoft, owner of The Gateway Pundit, a conservative publication,[9] and Jay Bhattacharya and Martin Kulldorff, academics who co-authored the Great Barrington Declaration, which questioned the government's handling of the COVID-19 pandemic.[10]

The plaintiffs obtained subpoenas in October and November 2022 from former and current members of the Biden administration, including Anthony Fauci, who served as Chief Medical Advisor to the President; Karine Jean-Pierre, who was the White House Press Secretary; and Kate Starbird, who served as an academic advisor to the Cybersecurity and Infrastructure Security Agency.[9][11] The government attempted to block these deposition requests, but only a few such requests were granted.[12] Fauci attended a deposition in November 2022, which Schmitt claimed proved that social media censored content based on what Fauci said during the pandemic.[13]

Preliminary injunction

Hearings for the case were held in May 2023. Judge Doughty issued his ruling on July 4, 2023, issuing a preliminary injunction against several Biden administration officials from contacting social media services for "the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech."[14] In his 155-page ruling, Doughty wrote: "The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country."[15] He continued: "If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history. The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition."[14]

Government agencies covered by the injunction included the Department of Justice, Department of Health and Human Services, State Department, the Centers for Disease Control and Prevention, and the FBI.[16] In addition to numerous social media companies, the injunction blocks the government from communicating with three academic programs at Stanford University and the University of Washington that study the spread of misinformation online: the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory.[16] The injunction allows for exceptions related to criminal activity and national threats.[17]

The U.S. Department of Justice filed its intent to appeal to the United States Court of Appeals for the Fifth Circuit the next day.[16] The Department of Justice sought a stay of Doughty's injunction, saying that it would prevent them from "working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes" ahead of the 2024 elections.[18] Legal experts, speaking to Reuters, said that while the case has merit, Doughty's preliminary injunction will face tough legal challenges on appeal.[19] On July 14, 2023, the Fifth Circuit granted a temporary administrative stay of the injunction until further order.[20]

Appellate decision

On September 8, 2023, the Fifth Circuit ruling upheld the district court ruling against the Biden Administration. The court found that some of the communications between the federal government and the social media companies to try to fight alleged COVID-19 misinformation "coerced or significantly encouraged social media platforms to moderate content", which violated the First Amendment.[21] But the court also ruled that Doughty's preliminary injunction was too broad, as it blocked some legal social media content created by government, and narrowed the injunction to prevent the government from taking "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."[21][22] The court placed enforcement of the injunction on hold for ten days to allow any appeals to be filed.[21][23] Supreme Court Justice Samuel Alito granted a temporary stay of the order on September 14, 2023, lasting initially until September 23 and then extended to September 27, to give both parties the ability to argue further on the appeal.[24][25] The Fifth Circuit Court of Appeals expanded the injunction issued in September to include the Cybersecurity and Infrastructure Security Agency (CISA), ruling that it used frequent interactions with social media platforms "to push them to adopt more restrictive policies on election-related speech".[26]

Supreme Court

The Supreme Court certified the petition to hear Missouri v. Biden during the 2023–24 term in October 2023. As part of certifying the case, the Court lifted the injunctions set by the lower courts, allowing the federal government to continue to contact social media companies without restrictions. Justices Alito, Clarence Thomas and Neil Gorsuch dissented from the lifting of the injunctions, with Alito writing, "Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing."[27]

References
  1. "Biden Suits Get Mixed Results for Missouri Senate Candidate". Associated Press. October 26, 2022. Retrieved July 5, 2023 – via U.S. News and World Report.
  2. Wicentowski, Danny (October 26, 2022). "How AG Schmitt's lawsuit is using the First Amendment to get to Dr. Fauci". KWMU. Retrieved July 8, 2023.
  3. "Trump Says 'Twitter Files' Bolster Case Jan. 6 Ban Was Illegal". Bloomberg.com. May 4, 2023. Retrieved September 10, 2023 – via www.bloomberg.com.
  4. Fung, Brian (June 6, 2023). "Twitter's own lawyers refute Elon Musk's claim that the 'Twitter Files' exposed US government censorship". CNN. Retrieved July 8, 2023.
  5. Myers, Steven Lee (February 9, 2023). "Free Speech vs. Disinformation Comes to a Head". The New York Times. Retrieved July 8, 2023.
  6. "'A mockery and a disgrace': Key takeaways from House GOP hearing on social media censorship". Yahoo News. March 30, 2023.
  7. Goldstein, Adam (March 30, 2023). "U.S. House members battle over 'weaponization' of government in hearing on Missouri lawsuit". Missouri Independent. Retrieved July 8, 2023.
  8. "Missouri, Louisiana AGs File Suit Against President Biden, Top Admin Officials for Allegedly Colluding with Social Media Giants to Censor and Suppress Free Speech". Eric Schmitt. May 5, 2022. Archived from the original on May 6, 2022. Retrieved July 5, 2023.
  9. Hancock, Jason (November 21, 2022). "Missouri AG aligns with St. Louis conspiracy theorist in social media lawsuit". Missouri Independent. Retrieved July 6, 2023.
  10. Myers, Steven Lee; McCabe, David (July 4, 2023). "Federal Judge Limits Biden Officials' Contacts With Social Media Sites". The New York Times. Retrieved July 8, 2023.
  11. Desrochers, Daniel. "Judge says Fauci, Jean-Pierre have to turn over emails to social media companies to Schmitt". Kansas City Star. Archived from the original on September 7, 2022.
  12. Hancock, Jason (November 22, 2022). "Missouri AG set to depose Anthony Fauci in social media lawsuit". Missouri Independent. Retrieved July 8, 2023.
  13. Schemmel, Alec (December 6, 2022). "Fauci said 'I don't recall' 174 times during deposition about collusion with social media". WPDE-TV. The National Desk. Retrieved July 8, 2023.
  14. Myers, Steven Lee; McCabe, David (July 4, 2023). "Federal Judge Limits Biden Officials' Contacts With Social Media Sites" – via NYTimes.com.
  15. Lawler, Richard (July 4, 2023). "US judge blocks Biden officials from contacting social media sites". The Verge.
  16. Wamsley, Laurel; Bond, Shannon (July 5, 2023). "U.S. is barred from combating disinformation on social media. Here's what it means". NPR. Retrieved July 8, 2023.
  17. McGill, Kevin; O'Brien, Matt; Swenson, Ali (July 5, 2023). "Judge's order limits government contact with social media operators, raises disinformation questions". Associated Press News. Retrieved July 8, 2023.
  18. Zakrzewski, Cat; Nix, Naomi; Menn, Joseph (July 8, 2023). "Social media injunction unravels plans to protect 2024 elections". Washington Post. Retrieved July 8, 2023.
  19. Pierson, Brendan; Goudsward, Andrew (July 6, 2023). "Order limiting Biden officials' social media outreach on shaky legal ground, experts say". Reuters. Retrieved July 8, 2023.
  20. Zakrzewski, Cat (July 14, 2023). "5th Circuit pauses order restricting Biden administration's tech contacts". Washington Post. Retrieved July 14, 2023.
  21. Snead, Tierney (September 8, 2023). "Appeals court says Biden admin likely violated First Amendment but narrows order blocking officials from communicating with social media companies". CNN. Retrieved September 9, 2023.
  22. https://reason.com/volokh/2023/09/10/free-speech-social-media-firms-and-the-fifth-circuit/
  23. Guynn, Jessica (September 8, 2023). "Biden administration coerced social media giants into possible free speech violations: court". USA Today. Archived from the original on September 12, 2023.
  24. Storh, Greg; Brimbaum, Emily (September 14, 2023). "Supreme Court Pauses Curbs on Biden Social Media Contacts". Bloomberg News. Retrieved September 14, 2023.
  25. {{cite web | url = https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23a243.html
  26. {{cite web | url = https://www.usatoday.com/story/money/2023/10/03/fifth-circuit-cisa-ruling-biden-first-amendment/71051110007
  27. Liptak, Adam (October 20, 2023). "Supreme Court Lifts Limits for Now on Biden Officials' Contacts With Tech Platforms". The New York Times. Retrieved October 20, 2023.
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