Alizay Azeem
Federal Criminal Defense Paralegal
The belief that the government not only monitors social media but also controls it formed the crux of the issue in Murthy v. Missouri. Murthy v. Missouri presents a lawsuit against the Biden administration for allegedly censoring controversial social media posts regarding COVID-19 and the 2020 election. While private companies are not necessarily subject to the First Amendment, the government is. The plaintiffs in this lawsuit (State of Missouri, State of Louisiana, and five individual social media users) alleged that social media platforms like Twitter and Facebook censored their posts due to coercion from the defendants (the Biden administration). The plaintiffs argued that this type of content moderation constituted state action subject to the First Amendment.
The Western District of Louisiana issued a preliminary injunction or court order preventing several agencies in the Biden administration, including the FBI, from contacting social media companies for the purpose of pressuring content moderation decisions. The Fifth Circuit upheld a narrowed and modified version of this order. The Supreme Court heard the case earlier this year.
On June 26, 2024, the Supreme Court issued its opinion that the plaintiffs lacked Article III standing and did not have a legal right to an injunction against the government for the online censorship they alleged. Consequently, the Supreme Court did not address the question at the heart of this case:
To what extent should government interference with social media content moderation decisions be considered state action subject to the First Amendment?
What is Article III standing?
Article III standing is one of the requirements a plaintiff must meet in order to bring a lawsuit in court. To establish Article III standing, a party must prove:
1) they suffered actual or threatened injury;
2) the injury can be traced to the actions of the defendant; and
3) the injury is redressable by a favorable decision on the relief requested.
If a court finds that a plaintiff failed to establish Article III standing, the plaintiff’s lawsuit can be thrown out.
What was the Supreme Court’s decision regarding Article III standing in Murthy v. Missouri?
In a 6-3 decision, the Supreme Court found that the plaintiffs in Murthy v. Missouri lacked Article III standing to get a preliminary injunction. The Supreme Court primarily questioned whether the censorship of the plaintiffs’ social media content was traceable to the government’s actions—the second prong for establishing Article III standing. Evidence that the social media platforms had a history of moderating and censoring similar content long before the federal government engaged in the challenged conduct cast doubt on the plaintiffs’ allegations that content moderation arose primarily due to government coercion.
Consequently, the Supreme Court found it unlikely that a court order preventing the federal government from communicating with social media platforms regarding content moderation would affect social media platforms’ future content moderation decisions. Thus, the plaintiffs fell short of establishing the third prong of Article III in their attempt to get that injunction.
What are the potential implications of the decision in Murthy v. Missouri?
In the majority opinion penned by Justice Barrett, the Supreme Court states that “[w]e begin—and end—with standing.” By ruling that the plaintiffs did not have Article III standing for the injunction they sought, the Supreme Court was able to avoid addressing the merits of the case examining whether government interference with social media content moderation violates the First Amendment. Consequently, the SCOTUS ruling restricts future plaintiffs’ ability to successfully bring future lawsuits addressing jawboning—the informal practice of government officials pressuring social media companies to take down specific content and speech, evading the constraints imposed on them by the First Amendment.
In his dissenting opinion, Justice Alito characterized the majority opinion as an attack on free speech and conducive to government censorship. Some commentators, however, celebrated the Murthy v. Missouri ruling as an example of good, bipartisan legal analysis.
What celebratory discourse fails to acknowledge, however, is that while protecting a private corporation’s ability to moderate disinformation regarding public health may be a public good, the Supreme Court’s ruling impacts more than just COVID-19 disinformation. It does nothing to clear up the issue of censorship. Since October 7, 2023, we have seen social media platforms shift their focus to moderating posts regarding political activism and organizing given the increasing trend of pro-Palestine accounts and posts being shadow-banned. For content moderation decisions that the government may claim involve national security interests, however, plaintiffs who sue the government and not the social media providers directly would likely face even more obstacles in obtaining enough discovery to establish traceability to a state action due to the classified nature of national security litigation. Thus, bringing similar lawsuits against the government, including the FBI, for any potential role they may have played in pressuring such content moderation decisions will likely remain, and may in fact become even more, difficult.
How does content moderation relate to national security prosecutions of Muslim Americans?
Discourse on content moderation often fails to acknowledge an uncomfortable truth: censorship of controversial, provocative, and unpopular social media posts does not necessarily prevent that rhetoric from appearing on the internet. Aggravated by censorship, many censored posters simply find another avenue on the internet to post their content, moving from public platforms to private chatrooms. While there certainly are social benefits to moderating content such as preventing disinformation on public platforms, the migration of provocateurs and authors of unpopular speech to private digital spaces—spaces that are not under public scrutiny—remains a serious concern.
From the lens of national security criminal defense of Muslim Americans, we have seen that the FBI will often exploit angry provocateurs and vulnerable people in our community to create criminal schemes where originally none existed. For example, one of our clients who was initially prosecuted for alleged material support of Hamas had just been banned from social media when he entered encrypted chatrooms flooded with online undercover informants. The online undercover informants encouraged inflammatory discussions, even provoking him to make statements that would later be used by the government to allege criminal misconduct. While MLFA’s Criminal Defense team was able to successfully litigate in dropping the terrorism charges in his case, our client’s story highlights the underbelly of government surveillance in ‘private’ digital spaces and prompts us to reflect on whether strict content moderation policies truly make us safer.
Alizay Azeem is MLFA’s Criminal Defense Paralegal. A Rice University graduate, Alizay has worked for MLFA since July 2023 assisting with case management and legal research for federal national security criminal defense cases. She is planning to attend law school in Fall 2025.
