Lawfare Daily: The Supreme Court Rules in Murthy v. Missouri
Jun 28, 2024
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Lawfare Daily discusses the Supreme Court's decision in Murthy v. Missouri with Kate Klonick and Matt Perault. They explore government influence on tech companies' speech decisions, threats from public officials, challenges of COVID disinformation, and the role of executive orders in regulating online speech.
Government pressure on social media may lack standing in court cases.
Debate on coercion vs. persuasion in government communication with tech companies.
Need for legislative clarity and guidance on government influence in speech decisions.
Deep dives
Impact of Jawboning on Tech Companies
Jawboning involves government pressuring private entities to alter speech-related decisions. The podcast highlights experiences at tech companies where government pressure influenced speech practices. The impact extends across administrations, domestically and internationally, affecting speech decisions. The covert nature of such influence leads to decisions based on private discussions rather than public debate.
Supreme Court's Ruling on Jawboning in Murthy Case
The Supreme Court addressed the Murthy case involving allegations of government pressuring social media platforms. The case lacked traceability between government actions and content removal, leading to a lack of standing for the plaintiffs. The court's ruling emphasized the need for a clear causal link between government requests and content removal to establish legal standing.
Debate between Majority and Dissenting Opinions
The podcast explores the debate between the majority and dissenting opinions on coercion and persuasion in jawboning cases. It highlights the challenge of defining when government communication crosses from persuasion to coercion. Questions arise on what constitutes a viable jawboning case with standing based on government influence on content removal.
Proposed Solutions to Jawboning Dilemma
Discussion delves into potential solutions for the jawboning dilemma, including the proposal for an executive order to guide government communication on speech-related decisions. The dialogue expands on how such guidance could set parameters for government interaction with private entities on speech issues, aiming to establish clear principles for conduct.
Resolution Through Legislative Action
The need for legislative clarity on jawboning cases emerges, suggesting that Congress could provide better-defined guidelines. While the executive order proposal is debated, emphasis is placed on promoting institutional capacity in Congress to delineate boundaries between coercion and persuasion in government communication with tech companies.
Conclusion: Balancing Speech and Government Influence
In conclusion, the podcast raises concerns over the balance between safeguarding speech and government influence. It underscores the complexity of addressing jawboning issues, advocating for nuanced solutions beyond legal standing. The dialogue highlights the interplay between government pressure and tech companies' decision-making processes, necessitating clearer parameters for communication and decision outcomes.
On June 26, the Supreme Court handed down its decision in Murthy v. Missouri—the “jawboning” case, concerning a First Amendment challenge to the government practice of pressuring social media companies to moderate content on their platforms. But instead of providing a clear answer one way or the other, the Court tossed out the case on standing. What now? Lawfare Editor-in-Chief Benjamin Wittes discussed the case with Kate Klonick of St. Johns University School of Law and Matt Perault, Director of the Center on Technology Policy at the University of North Carolina.
