Murthy v. Missouri: Tackling Misinformation on Social Media

By Samuel Garsha, Seasonal Grant Writing Intern | Digital4Good

You may be familiar with George Orwell’s 1984 and Ray Bradbury’s Fahrenheit 451 from reading the novels as a student. Today, both novels are lauded as classics of American literature, notable for their critiques of censorship during the Cold War era, an age in which concerns regarding information suppression ran rampant. 

Although the dystopian, Cold-War cynicism that these novels espouse is, in some ways, ironic and melodramatic, their arguments hold considerable politico-ideological weight today. Nowadays, with the prevalence of digital communication, the availability and transmissibility of information exist at incomparable heights. 

To avoid disinformation and misinformation crises that may arise with this abundance of information, the U.S. government has taken calculated measures to mitigate, suppress, or, in some instances, erase information on social media they deem inaccurate, misleading or insensitive.

An Overview: Murthy v. Missouri

Relevant to this polemic is Murthy, Surgeon General, Et. Al. v. Missouri Et. Al. (Murthy v. Missouri), a preliminary injunction case that was decided when a group of plaintiffs, including the states of Missouri and Louisiana, sued dozens of federal agencies accused of coercing Facebook and other social media sites into suppressing misinformation about the COVID-19 pandemic and COVID vaccination practices. They claimed this action was in direct violation of their First Amendment rights. 

Murthy was first heard in District Court, where the court determined that both individual and state plaintiffs had standing to seek injunctive relief – an injunction to stop the Government agencies in question from coercing or encouraging social media platforms to suppress speech. There was convincing evidence to conclude that the social media companies had suppressed the plaintiffs’ speech in the past and were likely to do so again in the future. The injuries of import were “traceable to Government-coerced enforcement” of the platforms’ policies and were “redressable by an injunction against the government officials” involved in the suit. 

Shortly after the District Court’s ruling of Murthy, the Fifth Circuit Court decided to hear the case. The Fifth Circuit agreed in large part with the decision of the District Court, stating that it was likely that White House officials, the Surgeon General’s Office and the FBI coerced and significantly encouraged the platforms to moderate their content, yet that the CDC and CISA significantly encouraged, but did not coerce, the platforms’ moderation decisions. For the agencies in which social media coercion was likely, the Fifth Circuit granted injunctive relief to plaintiffs.

SCOTUS Controversy

After a measured uproar following the Fifth Circuit’s decision to grant injunctive relief to plaintiffs in Murthy, the Supreme Court finally decided to hear the case. 

Justice Barrett delivered the opinion of the Court, arguing against the decision of the Fifth Circuit and contending, in continuation of arguments that SCOTUS has made quite frequently this term, that the plaintiffs in question did not have the requisite standing to seek a preliminary injunction, failing to meet the “case or controversy” requirement of Article III of the U.S. Constitution. In line with the Court’s reasoning, the judgment of the Fifth Circuit for preliminary injunction was reversed, and the case was remanded for further proceedings. 

The link between the government’s role in influencing the platforms’ policy decisions and the actions these platforms took in suppressing the content is admittedly weak and somewhat unclear. However, the fact that federal agencies had extended contact with social media platforms regarding the nature of their misinformation policies may be worthy cause for concern. 

Justice Alito, with whom Justices Thomas and Gorsuch joined, mentions in his dissenting opinion in Murthy the nature of this concern: “The Court [in deciding to deny injunctive relief to plaintiffs]... thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think” (Murthy v. Missouri, 4). 

In effect, Justice Alito argues that, because the federal agencies were allegedly permitted to coerce social media platforms to suppress information that they, the federal agencies, had deemed impermissible or inaccurate, this may encourage these agencies — or other federal agencies in the future — to continue to coerce social media platforms to suppress information, as the likelihood that they will face retribution for doing so will be exceedingly low. 

Furthermore, the agencies may feel motivated to do so in order to exert more control over what information the American people consume. Consequently, this may influence what the American people choose to think and talk about. 

Justice Alito also hints that Murthy will set a precedent which will make it considerably more challenging for plaintiffs to bring a case against the U.S. government for coercion in social media, as it appears that the Supreme Court demands a higher burden of proof in proving causality in these cases.

Closing Remarks 

While the dissemination of misinformation can have a devastating impact on youths’ understanding of the world and jeopardize their ability to discern fact from fiction, at what point does the policing of misinformation become censorship? 

Should the U.S. government play a role in dictating what users are and are not allowed to post on social media? Are misinformation policies conducive to healthy online spaces, or do they infringe upon First Amendment rights? I encourage you to consider these questions the next time you log on to social media. 

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