The podcast discusses the First Amendment implications of government outreach to social media platforms, known as jawboning. The Supreme Court seems skeptical of claims of government censorship. The conversation explores government coercion versus persuasion in content moderation and the challenges in determining permissible contacts. It also delves into the complexities of regulating terrorist speech and the implications for free speech in various legal cases.
Supreme Court justices questioned the validity of factual findings in government-platform interactions under the First Amendment.
The importance of transparent government-platform communication to prevent unconstitutional coercion and chilling effects on independent research.
The delicate balance between valuable government communications and safeguarding free speech interests in tech platform regulations was emphasized.
Deep dives
Overview of the Murthy v. Missouri Case and Background
The Supreme Court heard arguments in Murthy v. Missouri concerning government outreach to social media platforms, questioning First Amendment implications. States claimed their posts were censored by platforms under government influence. The case questions constitutional claims under the First Amendment on government-overseen online content.
Procedural Posture and Judicial Interpretations
Issues escalated from a broad injunction forbidding federal interactions to a narrowed Fifth Circuit scope before reaching the Supreme Court. Justices grappled with established legal precedent on coercion versus persuasion, questioning the validity of factual findings of the lower courts. Concerns were raised over the deference to factual findings and the challenge of distinguishing implied threats in government interactions with platforms.
Role of Transparency and Complexities in Government-Platform Relationships
The conversation delved into the importance of transparency in government-platform communication to deter unconstitutional coercion. The chilling effect on independent research due to litigation's aftermath was highlighted, impacting the understanding of electoral threats. The delicate balance of structuring government interactions for valuable communication while safeguarding free speech interests was stressed.
Ambiguity in First Amendment Doctrine and Political Implications
The discussion discerned between First Amendment protection and government coercion in regulating tech platforms, acknowledging the need for judicious rule-making. Concerns were raised about partisan inclinations influencing the court's stance, while seeking apolitical rules. The justices' cautious approach to resolving cases narrowly was noted, emphasizing the complexity of delineating permissible government influence.
Connection to Net Choice Cases and Implications for Tech Platforms
Links were drawn between government regulation of social media in the Murthy case and the direct regulation addressed in the Net Choice cases. The recognition of tech platforms' First Amendment rights was pivotal, aligning with their role as free speech entities. The podcast emphasized the critical interplay between tech regulations and platforms' speech rights in the evolving legal landscape.
Today, we’re bringing you an episode of Arbiters of Truth, our series on the information ecosystem.
On March 18, the Supreme Court heard oral arguments in Murthy v. Missouri, concerning the potential First Amendment implications of government outreach to social media platforms—what’s sometimes known as jawboning. The case arrived at the Supreme Court with a somewhat shaky evidentiary record, but the legal questions raised by government requests or demands to remove online content are real.
To make sense of it all, Lawfare Senior Editor Quinta Jurecic and Matt Perault, the Director of the Center on Technology Policy at UNC-Chapel Hill, called up Alex Abdo, the Litigation Director of the Knight First Amendment Institute at Columbia University. While the law is unsettled, the Supreme Court seemed skeptical of the plaintiffs’ claims of government censorship. But what is the best way to determine what contacts and government requests are and aren't permissible?
If you’re interested in more, you can read the Knight Institute’s amicus brief in Murthy here and Knight’s series on jawboning—including Perault’sreflections—here.