Murthy v. Missouri Oral Arguments

After listening to the oral arguments, I am concerned for the future of Freedom of Speech online, but not entirely hopeless

Edit: Correction to the title changing Biden to Missouri to reflect the correct parties

In what is arguably the most consequential 1st Amendment lawsuit of our lifetimes, the Supreme Court just heard oral arguments regarding whether to uphold the preliminary injunction imposed on the federal government by Judge Doughty back on July 4th 2023, which bars them from communicating with social media companies for the purpose of censoring American’s speech online.

The context surrounding this case is the mass censorship of speech on social media platforms, prompted by what the Feds deem as “harmful” mis, dis, and mal-information. Plaintiffs have argued that the government has overstepped their Constitutional authority by communicating with platforms through backdoor access they were given in the form of an email portal where they could request the take down of various accounts, posts, and groups, amongst other things.

Right out of the gate, I must say that I am deeply concerned after listening to the hearings. Although, I am not entirely hopeless that SCOTUS will decide in favor of the plaintiffs.

If they do, we can rest assured the Feds will not be able to continue censoring Americans’s constitutionally protected speech while this suit plays out. If they don’t, the censorship will persist until its conclusion which would likely be years from now.

I don’t want to spend too much time breaking down every single little detail from the hearing, but there are some key points I want to make, and some key statements I want to highlight.

If you’d like to listen to the full hearing, I embedded the audio at the top of this article for your convenience.

The Petitioners

To start, Mr. Fletcher, the Fed’s lawyer, clearly stated that the government may not use coercive threats to suppress speech but that they are entitled to speak for themselves by, “informing, persuading, or criticizing private speakers.”

He argued that the plaintiffs do not have standing in this case because they have failed to demonstrate an imminent threat that the government will cause platforms to moderate their posts in particular. He suggested to the court that they should affirm the government would have only crossed the threshold for 1st Amendment violations and coercion if their actions convey a threat of adverse action.

One component of his argument was hinged on the concept of “traceability” where he suggests that the respondents failed to establish that the specific actions taken by the petitioners had actually caused social media platforms to take action on their behalf, resulting in the respondent’s speech being curtailed. This would set the stage for whether or not the private actions taken by social media platforms could then be considered State Action, as the 1st Amendment only applies to the government.

Justice Alito pushed back on Mr. Fletcher suggesting that SCOTUS usually does not reverse findings of fact that have been endorsed by two lower courts. In this case, the District court and the 5th Circuit courts had both affirmed the findings of fact that injury was traceable to the government’s actions.

The key points of contention Mr. Fletcher voiced was that the findings of fact that would potentially be considered unconstitutional actions are mere “characterizations” rather than historical fact, and findings that are premised on erroneous legal standards.

Justice Gorsuch also made a point to question Mr. Fletcher on whether the respondents could prove that their injury would be remedied “to some extent”, if that would be enough to justify the injunction. Mr. Fletcher conceded this point saying,

Correct. So, if they're likely to face moderation on 10 posts and an injunction against the government would make it eight, that's enough.

Justice Alito chimed in to lay out what he found when reading emails between the Feds and the social media platforms, characterizing these exchanges as unusual. He noted that the Feds were referring to social media companies as their “partners” and that they were “on the same team”. He also noted that when they were not complying with their demands, they got frustrated and cussed them out in the email exchanges.

The Respondents

Mr. Aguinaga, the respondent’s lawyer, started off his arguments by saying that the 20,000-page record was “stunning”, and that it revealed “unrelenting pressure” by government to coerce platforms into suppressing the speech of millions of Americans. He noted how the district court had reviewed the record for an entire year before handing down their ruling, which concluded that this is arguably one of the most massive attacks on free speech in America’s history.

He also noted how considering the pressure put on them by the Feds, social media platforms had reluctantly acted outside of their terms of service to comply with their demands, even stating in an internal email that they shouldn’t have done so, but did because they were under such pressure.

Immediately, Justice Thomas posed the question as to whether or not they were arguing that coercion was the necessary bar for establishing 1st Amendment violations. Mr. Aguinaga responded that they did not need to go as far as coercion to show that injury occurred as a result of the governments actions, rather mere encouragement would be enough, citing this court’s decision in the Norwood case, which concluded that,

the government cannot induce, encourage, and promote private actors to do directly what the government can't itself do directly.

Through and through, this was the position held by the respondent’s lawyer — that the government was compelling, persuading, and possibly coercing the private actors (social media companies) to suppress freedom of speech, something the government is not permitted to do.

There was significant pushback from Justice Sotomayor who suggested that Mr. Aguinaga was “confusing legal doctrine” in this instance, and that social media companies have every right to choose to remove this speech on their own had the government not compelled them to do so.

The pushback from Mr. Aguinaga was that in many instances, the platforms wouldn’t have removed content the Feds wanted them to because it was outside the scope of their terms of service.

Justice Jackson then pushed back suggesting that the test for 1st Amendment violations lies in whether the government has a “compelling interest” in suppressing speech.

Justice Kagan chimed in questioning whether or not he believed the law enforcement agencies should be able to inform platforms that they are hosting terrorist or criminal activity on their platform. Mr. Aguinaga replied that such activity is not protected speech, which she then countered that some of their speech may still be protected.

She then posed the hypothetical of whether the government should be able to inform platforms of harmful content they may be hosting and what harms they believe are being done by them hosting it. She asked whether they should be able to do so. His response was effectively that they have every right to inform them. However, they would be treading into unconstitutional territory if they asked them to take action against such content, especially if it’s not in alignment with their own policies or terms of service.

At one point, Justice Jackson suggested that the government does in fact have the power to encourage, or even coerce the suppression of speech if the government has a compelling interest in doing so. One example she cited was the government’s interest in the suppression of classified information that may have been published.

Mr. Aguinaga suggested that the bully pulpit could be used to coerce specific behaviors but not the suppression of third party speech.

After Justice Jackson posed a hypothetical about kids being exposed to content that directed them to jump out of windows at increasing heights and the harms that could cause, Justice Alito chimed in to reaffirm the Respondent’s arguments.

Well, Mr. Aguinaga, I think some of your most recent colloquy with my colleagues have gotten off into questions that I didn't take it from your brief we -- you think we actually need to decide in this case. So I thought your principal argument was that whatever coercion means, it -- what happened here is sufficient and that coercion doesn't mean only -- it doesn't apply only when the government says do this, and if you don't do this, there are going to be legal consequences when it says that in this same breath, but that it's a more flexible standard and you have to take into account the whole course of the relationship regarding this matter.

To which Mr. Aguinaga responded that this was correct, and that there is a 20,000-page record stemming from limited discovery that shows the government repeatedly going back to platforms, pressuring them to change their policies and do more censoring.

One final point I found worth nothing was a statement by Justice Jackson, where she suggested that the government has, in her mind, a duty to protect the citizens of this country, and that Mr. Aguinaga was arguing the government has no right to encourage or pressure platforms to take down harmful content.

She said,

So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods. I mean, what would — what would you have the government do?

Mr. Aguinaga essentially reaffirmed his original stance, which was that the government only has the authority to inform them, ask for the promotion of their own view points, but does not have the constitutional authority to persuade or coerce them to censor speech.

My thoughts

Ultimately, I am concerned that we will see an unfavorable ruling to the respondents complaints.

The liberal Justices, as well as Justice Barret, seemed to have significant adversarial concerns over the arguments being made by the respondents. It seemed they had little insight into the actual findings of fact. However, that’s largely speculation.

It seemed pretty clear that the conservative justices, especially Justice Alito and Gorsuch, had a much better understanding of the arguments being made, and the actual findings of fact.

That being said, I am still somewhat hopeful that we could see the injunction being upheld, as it was much more narrow in its scope by the time it reached SCOTUS, and had carve-outs for the various instances where the government would in fact have a “compelling interest” in suppressing various types of speech.