CDT and EFF File Supreme Court Amicus Brief in Murthy v. Missouri
On December 21, CDT joined the Electronic Frontier Foundation to file an amicus brief in Murthy v. Missouri in the Supreme Court. In that case, state attorneys general and a handful of social media users have claimed that the White House and various executive agencies violated the First Amendment by coercing social media services into censoring protected speech. The lower courts broadly agreed, issuing sweeping decisions that have created confusion regarding what kinds of interactions between the government and social media services are permissible.
CDT and EFF’s brief argues that the Supreme Court must rectify the confusion generated by the lower courts. The brief notes that classic First Amendment concerns are raised by government involvement in social media services’ content moderation processes and that the Court rightfully should be concerned about indirect censorship of governmentally disfavored views. At the same time, the brief argues that not every government communication to a social media service is either improper or unwise. Interactions between platforms and governments can be important means of supporting the creation of healthier and more reliable information environments on social media, and they can also diminish the impact of disinformation, spam, and other efforts to undermine the marketplace of ideas.
CDT and EFF explain that differentiating between proper and improper communications requires examination of multiple factors. We urge the Court to examine the facts and determine, in each instance, whether the government improperly sought to suppress constitutionally protected speech. This clarifying review will permit information sharing between the government and social media services to occur with appropriate safeguards for speech in place. Our brief reiterates that the proper questions for the Court to explore are whether the government intended to suppress speech and whether a reasonable recipient of the government’s communications would have perceived the government’s communications as coercive rather than persuasive. In close cases, to protect speech, the brief argues the decision should go against the government. Finally, the brief argues that the government is best suited to alleviate concerns about the propriety of its interactions with speech intermediaries, including, among other things, by using the appropriate tone and providing transparency into the communications.
