David Inserra
This blog is part of a series on technology innovation and free expression.
In the aftermath of the 2020 election and COVID-19 pandemic, many people accused social media companies and other private actors of suppressing expression. Details and records trickled out through the Twitter Files, congressional subpoenas, and discovery in court cases over the next few years. In 2024, the question reached the Supreme Court: did state and federal government employees unconstitutionally push, or “jawbone,” social media companies to suppress users’ First Amendment-protected speech online that government officials believed was dangerous or politically inconvenient?
Last term, in NRA v. Vullo, the court unanimously upheld the principle that it’s unconstitutional for government employees to coerce companies into denying services to customers because of their protected speech. That case involved allegations of regulated insurers cutting off insurance products to gun rights advocate groups after threats from state regulators.
However, the court’s ruling in Murthy v. Missouri made it difficult for Americans to prevent future censorship if the government pressure remains secretive. The social media users in Murthy provided evidence that the government had, in some cases, aggressively badgered social media companies to remove speech. and in countless other cases recommended the suppression of or notified platforms about potentially violating or harmful content. These users wanted the pernicious government communications with social media companies to stop. Even though technology company executives’ internal emails and subsequent public statements indicate they sometimes felt coerced by government actors to remove controversial COVID-19 claims, the court majority was unpersuaded that future censorship was imminent.
While Murthy v. Missouri largely involved jawboning by Democratic officials, the decision also makes it difficult for people to prevent censorship pressures when President Trump and other Republicans are in office. Whether it’s about COVID-19, elections, gender and sexuality, or abortion, government actors should not secretly pressure private companies to silence protected speech.
Transparency would help. Congress or the president, therefore, should require all government officials to record any oral or written request or suggestion to private actors to remove speech or deny services based on First Amendment-protected speech or activities. These reports would be collected by the Office of Management and Budget and disclosed to the public, subject to certain redactions for security or individuals’ privacy already found in the Freedom of Information Act and the Privacy Act. Companies would notify individual customers that the government had requested the removal of their speech or denial of services.
By making these requests public, this proposal does not punish government agents for merely communicating with or advising companies about potentially dangerous or false information, but it would limit secret and unconstitutional censorship attempts.
Sunlight is a powerful disinfectant and because Murthy makes it difficult to prevent future government censorship, policymakers and companies should respond with more transparency about when government officials ask for speakers or topics to be censored or punished on social media platforms.