By Trisha Prabhu
“I’m really interested in law and tech. What is the whole Murthy social media case about?”
Hi there, and welcome back to another week of Ask Trish (and our last post of March – can you believe it?)! I hope you’ve all been well and have had a great month.
Thank you so much to this week’s question-er for the timely, interesting question. Indeed, earlier this month, the United States (US) Supreme Court heard arguments in the case Murthy v. Missouri. It’s a fascinating case involving the government, social media companies, and the 1st Amendment to the US Constitution…but it’s also a little confusing. Identifying the precise legal issues at play (in a way that is not boring) and why these arguments/this case, more broadly, matter can be a bit challenging. Thankfully, I’ve got you covered! This week, I’ll walk you through 1) what the case is about/why it’s being heard by the Court, 2) what’s likely to happen, and 3) why all of this matters/is relevant to the future of social media.
Sound like a plan? Let’s get into it:
First of all, what is this case all about? Simply put, Murthy v. Missouri is about whether the US federal government’s request that private social media companies take down certain content back in 2020 was an infringement on users’ right to free expression. 2020, as you’ll recall, was quite the year. Among many other things happening, the COVID-19 pandemic was raging and it was an election year in the US. Of course, these topics were being discussed on social media – and there was serious concern that COVID-19-related mis/disinformation was being propagated on social media platforms, including mis/disinformation about mask and vaccine efficacy (which, of course, were both crucial tools to stop the spread of the disease). Similarly, the federal government, and The White House in particular, were also alarmed by widespread digital discussion of false claims that the US 2020 Presidential election was “stolen.” Thus, in response, they communicated and coordinated with social media companies to prevent the spread of this harmful content. But some folks have taken issue with this. Indeed, they argue that in fact, this type of coordination was actually coercion, that the federal government coerced social media companies to take down expression that it did not like, namely, conservative-leaning views. The States of Louisiana and Mississippi have thus argued that this action meant that their states’ internet users’ right to free speech was impeded on. The big question before the Court then, is whether that is actually the case.
So, what are the Justices likely to decide? There’s no way that we can know exactly what their decision will be, but per commentators that were following along as the Justices heard arguments earlier this month, they seemed skeptical of and cautious about limiting the federal government’s ability to communicate with social media companies. Indeed, many of the Justices seemed convinced that there was a significant distinction between governments attempting to persuade private entities not to publish certain information and governments coercing private entities, i.e., backing those requests up with threats, and thus, impeding on free speech. Overall, whatever their decision, many of the judges seem to believe that there is a role for government in limiting harmful speech online.
Which brings us very nicely to why this case matters. If the Justices go the way folks think they’re leaning, that means that they will affirm that government officials can play a (albeit, limited) role in shaping social media companies’ content moderation policies. Some people argue that that is not only critical to tackling harmful content, but to the health of US democracy. Indeed, democracies rely on the information ecosystem in which they exist. On the other hand, if the Justices go the other way, it means that platforms will have much more room to exercise their judgment as to what content should/should not be taken down. For other people, this is critical to safeguarding free expression that is free from government intervention. Either way, though, this decision will have important implications for the future of content moderation and who gets to have a voice with respect to that moderation.
I hope that that was a helpful rundown of Murthy v. Missouri! If you’re now feeling grateful…and you’ve got a spare minute (or 30 seconds!), I’d really appreciate a “thank you” in the form of you sharing any other internet-related questions or thoughts with me here. It’s a win-win-win: I get to write about topics that really resonate with you all, you get handy advice, and our entire community learns and benefits. So please, fill out the form! Thank you in advance.
Wishing you a great end to March,
Trish