How Distorting the Marketplace of Ideas Harms Speakers, Listeners, and Democracy: The Plaintiffs Weigh In on Murthy v. Missouri

With the US Supreme Court preparing for March arguments in the contentious jawboning case of Murthy v. Missouri (formerly Missouri v. Biden), the plaintiffs––Missouri, Louisiana, and five individuals censored on social media platforms––filed their high-court brief this month. Murthy hinges on whether censorship by platforms like Facebook and X (formerly Twitter) of speech about COVID-19 vaccines, election fraud, and other politically fraught matters should be imputed to the government due to repeated take-down pressuring by numerous officials and agencies. Put differently, did government officials violate the First Amendment when, as the plaintiffs assert, they successfully demanded both “the censorship of specific posts and accounts—especially those viewed as the most effective critics of the government’s viewpoint” and “specific changes to platforms’ content-moderation policies and enforcement practices”?

In early January, I addressed US Solicitor General Elizabeth Prelogar’s central argument for the government: “[S]o long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views in strong terms, and even if private actors change their speech or conduct in response.” A subsequent post encapsulated her stance that: (1) no official crossed the line separating permissible persuasion from unlawful coercion; (2) President Biden and White House officials merely exercised traditional bully pulpit powers; and (3) a ruling for the plaintiffs would hinder the government’s ability to have platforms remove speech promoting terrorism, jeopardizing national security, harming minors, and threatening election integrity.

This post highlights key free speech interests and policy concerns animating the plaintiffs’ brief. Its central contention is that “Defendants’ conduct fundamentally transforms online discourse and renders entire viewpoints on great social and political questions virtually unspeakable on social media.” The present tense––“transforms”––is purposeful, with the plaintiffs calling it “undisputed that the challenged conduct continues to this day” and is “expanding to new topics” like climate change, abortion, and racial justice.

The brief asserts that the government’s “extensive involvement in platforms’ decisionmaking about content moderation” allows it “to distort the marketplace of ideas and shift entire narratives” by engaging in “viewpoint discrimination” against “core political speech.” In a 2017 concurrence, Justice Anthony Kennedy called viewpoint discrimination “a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny.” Indeed, viewpoint-based statutes––those in which the government bars some views on a topic but not others––invariably are unconstitutional.

For instance, imagine a statute regulating speech about COVID-19 vaccines. Instead of regulating all speech about vaccines, however, the statute only bars speech questioning and criticizing their efficacy, not messages lauding and extolling their virtues. This hypothetical statute embodies viewpoint discrimination, with the government suppressing one side of the debate but not the other. Such a law––akin to one banning pro-choice views about abortion but not pro-life opinions––would easily be struck down for violating the First Amendment.

That explains why the government prefers to skew the marketplace of ideas through verbal persuasion (as the government sees it) or coercion (as the plaintiffs characterize it). As I explained earlier, jawboning lets the government “informally implement its policy objectives without needing to clear the high hurdles of the legislative process. In short, it’s sometimes easier for the government to tilt corporate decisions in its desired direction through doses of communicative pressure than via the rocky road leading to legislative fiat.” I noted that jawboning “occurs outside the confines of the judiciary and legal system, where substantive and procedural guardrails keep the government in check when First Amendment interests are threatened.” That’s one reason why the Court’s ruling in Murthy will be so important: It will determine how easily the government can manipulate from “behind closed doors” what’s supposed to be an “uninhibited, robust, and wide-open” marketplace of ideas and squelch dissenting viewpoints from the likes of vaccine skeptics and the derisively dubbed “Disinformation Dozen.”

Importantly, the plaintiffs argue that multiple expression-based interests––not just those of “the citizen-critic of government”––are harmed by the government’s actions. They assert that states “have sovereign interests in posting their own speech and in following the speech of their citizens on social media, especially political speech.” In brief, the government’s jawboning affects not only the states’ ability to speak to constituents, but also their right to listen to voters (their right to receive speech from citizens who are squelched by the government when exercising their own First Amendment rights of speech and petition).

The brief adds that “[b]y silencing speakers and entire viewpoints across social-media platforms, Defendants systematically injure Plaintiffs’ ability to participate in free online discourse.” Ultimately, the plaintiffs contend the government may “advocate in the abstract for censorship” (emphasis in original) and “speak freely on any topic it chooses,” but it cannot “pressure and coerce private companies to censor ordinary Americans.”