Next Monday the Supreme Court is scheduled to hear oral arguments in Murthy v. Missouri, which poses the question of whether federal officials violated the First Amendment when they persistently pressured social media platforms to curtail “misinformation.” That is what the U.S. Court of Appeals for the 5th Circuit concluded last September, and the Foundation for Individual Rights and Expression (FIRE) is urging the justices to affirm that decision.
FIRE says the 5th Circuit was right to conclude that Biden administration officials engaged in “significant encouragement” of speech suppression and that they crossed the line between persuasion and coercion. But the organization’s brief also highlights the First Amendment “hypocrisy” of the lead plaintiffs in this case, which it says “inadvertently” reinforces their argument.
Murthy v. Missouri, originally known as Missouri v. Biden, began with a federal lawsuit that Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry, both Republicans, filed in May 2022. Schmitt, now a senator, was succeeded in January 2023 by another Republican, Andrew Bailey, who took over the case. Landry, now Louisiana’s governor, was succeeded by Republican Liz Murrill in January 2024.
Even as they oppose government control of social media in Murthy, FIRE notes, Missouri and Louisiana are asking the Supreme Court to uphold it in Moody v. NetChoice and NetChoice v. Paxton. Those cases involve First Amendment challenges to Florida and Texas laws that restrict Facebook et al.’s content moderation decisions in the name of promoting ideological diversity. During oral arguments in the NetChoice cases last month, most of the justices seemed inclined to agree that the two states are attempting to override the platforms’ constitutionally-protected editorial discretion.
The contradictory positions taken by Missouri and Louisiana in Murthy and the NetChoice cases suggest those states “believe the First Amendment permits them to do directly what it prohibits other government actors from doing indirectly,” FIRE lawyers Robert Corn-Revere and Abigail Smith write. “In fact, they argue not just that the First Amendment permits state regulation of private speakers, but that state regulation is necessary for free speech to exist. This argument—that regulation is free speech—is distinctly Orwellian.”
While decrying “their political opposition’s use of informal measures to steer
the public debate,” the attorneys general of Missouri and Louisiana “are at the same time asking this Court in the NetChoice cases to approve formal state control of online platforms’ moderation decisions, saying it presents no First Amendment question at all,” FIRE says. “Unbelievable.”
The hypocrisy does not end there. The “same officials” who describe the Biden administration’s interactions with social media companies as “arguably…the most massive attack against free speech” in U.S. history, Corn-Revere and Smith note, have “actively and repeatedly issue[d] threats and use[d] their official authority to suppress speech they oppose.”
The day after Bailey welcomed U.S. District Judge Terry Doughty’s July 2023 ruling against the Biden administration as a blow to “bully-pulpit censorship,” FIRE says, he “signed a letter along with six other state AGs threatening Target Corporation for the sale of [LGBTQ]-themed merchandise as part of a ‘Pride’ campaign, warning ominously” that selling those products “might violate state obscenity laws.” The items to which Bailey et al. objected “included such things as T-shirts with the words Girls Gays Theys” and “what the letter described as ‘anti-Christian designs,’ such as one that included the phrase Satan Respects Pronouns,” Corn-Revere noted in a Reason essay last July. “The claim that such messages could violate obscenity law would embarrass a first-year law student. And by signing on to the Target letter while simultaneously issuing press releases praising Doughty’s decision, Bailey showed his attitude toward constitutional freedoms is, well, flexible.”
The point of that letter “was not to make a coherent legal argument,” FIRE’s brief says. “It was to get Target’s leadership to think long and hard about the risks the company might run by expressing messages powerful government officials didn’t like.” In other words, it bore more than a passing resemblance to the official bullying that Bailey was decrying in his lawsuit against the Biden administration.
There’s more. Last December, Bailey “announced a fraud investigation into the advocacy group Media Matters because it had criticized the social media company X for allegedly placing advertisements adjacent to extremist or neo-Nazi content, thus causing a number of advertisers to withdraw from the platform.” Bailey and Landry sent “follow-up letters to the advertisers to alert them to Missouri’s investigation and urg[e] them to ignore the claims made by Media Matters.”
Although Bailey and Landry “tried to frame their actions as a defense of free speech, their explanations rang hollow given their nakedly partisan objectives and coercive tactics,” FIRE says. “They described Media Matters as an organization dedicated to ‘correcting conservative misinformation in the U.S. Media,’ but with a ‘true purpose’ of ‘suppressing speech with which it disagrees.'” Bailey complained that “the progressive mob” was demanding “immediate action” in response to Media Matters’ criticism, saying the response from advertisers was hurting “the last platform dedicated to free speech in America.”
In short, FIRE says, Bailey and Landry “were simply flexing state muscle to take sides in a culture war dispute.” The brief quotes Reason Contributing Editor Walter Olson, who observed that “the most risible bit of the letter—better than satire, really” was Bailey’s claim “to be standing up for free speech by menacing his private target with legal punishment for its speech.”
Defending the First Amendment “can be a source of consternation because it requires you to share your foxhole with political opportunists,” Corn-Revere and Smith write. “They see free speech principles as nothing more than tools they can cynically exploit for temporary partisan advantage, and their headspinning inconsistencies mock notions of neutrality.” But far from undermining their argument in Murthy, “their inconsistent behavior and situational approach to First Amendment interpretation stand as monuments for why this Court must use this case to reinforce principles that will bind all government actors, including the state AGs who brought this case.”
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