Murthy, Surgeon General v. Missouri

Facts

Under their longstanding content-moderation policies, social media platforms have taken a range of actions to suppress certain categories of speech. They place warning labels on some posts while deleting others. They also “demote” content so that it is less visible to other users. And they may suspend or ban users who frequently post content that violates platform policies. For years, the platforms have targeted speech they judge to be false or misleading. They all demonetize channels with content they simply do not like. This runs the gamut from the Wuhan Flu, elections, CRT, and anyone they consider a racist or a Nazi. One month before the election, multiple platforms suppressed a report about Hunter Biden’s laptop, believing that the story originated from a Russian hack-and-leak operation. After the election, the platforms took action against users or posts that questioned the integrity of the election results. Over the past years, various federal officials regularly spoke with the platforms about the Wuhan Flu and election-related 'misinformation.' Officials at the White House, the Office of the Surgeon General, and the Centers for Disease Control and Prevention (CDC) focused on Wuhan Flu content, while the Federal Bureau of Investigation (FBI) and the Cybersecurity and Infrastructure Security Agency (CISA) concentrated on elections. Over the years, various federal officials regularly spoke with the platforms about the Wuhan Flu and election-related 'misinformation.' Officials at the White House, the Office of the Surgeon General, and the Centers for Disease Control and Prevention (CDC) focused on Wuhan Flu content, while the Federal Bureau of Investigation (FBI) and the Cybersecurity and Infrastructure Security Agency (CISA) concentrated on elections. Government officials interrogated Facebook (and to a lesser extent, Twitter and YouTube) with detailed questions about their policies, pushed them to suppress certain content, and sometimes recommended policy changes. Of course, the officials were unhappy when they did not get their way and raised the possibility of reforms aimed at the platforms, including changes to the antitrust laws and 47 U. S. C. §230. P, the Surgeon General issued a health advisory on misinformation. The advisory encouraged platforms to “redesign recommendation algorithms to avoid amplifying misinformation,” “impose clear consequences for accounts that repeatedly violate platform policies,” and “provide information from trusted and credible sources to prevent misconceptions from taking hold.” P issued a “Request for Information,” seeking, among other things, reports on each platform’s “Wuhan Flu misinformation policies.” The CDC frequently communicated with the platforms. The CDC hosted meetings and sent reports to the platforms, alerting them to misinformation trends and flagging example posts. The platforms often asked the agency for fact-checks on specific claims. The FBI and CISA communicated with the platforms about election-related misinformation. They hosted meetings with several platforms in advance of the 2020 Presidential election and the 2022 midterms. The FBI alerted the platforms to posts containing false information about voting, as well as pernicious foreign influence campaigns that might spread on their sites. Shortly before the 2020 election, the FBI warned the platforms about the potential for a Russian hack-and-leak operation. Some companies then updated their moderation policies to prohibit users from posting hacked materials. Ps allege that various platforms removed or demoted their Wuhan Flu or election-related content between 2020 and 2023. The States (Missouri and Louisiana) claim that the platforms have suppressed the speech of state entities and officials, as well as their citizens’ speech. Ps maintain that the Federal Government was behind it. Ps sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to censor Ps’ speech in violation of the First Amendment. Ps moved for a preliminary injunction to stop Ds from “taking any steps to demand, urge, encourage, pressure, or otherwise induce” any platform “to censor, suppress, remove, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content, or viewpoint expressed on social media.” The District Court issued a preliminary injunction. The court held that officials at the White House, the Surgeon General’s Office, the CDC, the FBI, and CISA likely “coerced” or “significantly encouraged” the platforms “to such extent that their content-moderation decision[s] should be deemed to be the decisions of the Government.” It enjoined those agencies, along with scores of named and unnamed officials and employees, from taking actions “for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-medial platforms.” The Fifth Circuit affirmed in part and reversed in part. It held that the individual Ps had Article III standing to seek injunctive relief, reasoning that the social media companies had suppressed the Ps’ speech in the past and were likely to do so again in the future and that both of these injuries were “traceable to government-coerced enforcement” of the platform’s policies and “redressable by an injunction against the government officials.” The court also concluded that the States had standing, both because the platforms had restricted the posts of individual state officials and because the States have the “right to listen” to their citizens on social media. It held from precedents that “a private party’s conduct may be state action if the government coerced or significantly encouraged it.” The court explained that the Government significantly encourages a private party’s choice when it exercises “active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself.” The Fifth Circuit determined that White House officials, in conjunction with the Surgeon General’s Office, likely both coerced and significantly encouraged the platforms to moderate content. The court concluded that the same was true for the FBI. It held that the CDC and CISA significantly encouraged (but did not coerce) the platforms’ moderation decisions. The Fifth Circuit modified the District Court’s injunction to state that Ds, and their employees and agents, shall not “‘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.’” Ds applied to this Court for emergency relief. The court stayed the injunction, treated the application as a petition for a writ of certiorari, and granted the petition.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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