Murthy v. Missouri

Since around 2020, then-Missouri Attorney General Eric Schmitt had been filing numerous lawsuits against the Biden administration, with a total of 26 suits as of October 2022. According to Schmitt's senate campaign website, these suits were filed to hold the Biden administration accountable, while Schmitt later said "The Attorney General's Office standing in between Missourians and a radical, overreaching government is a hallmark of federalism, and states have a vital duty to keep the federal government in check."{{cite news | url = https://www.usnews.com/news/politics/articles/2022-10-26/biden-suits-get-mixed-results-for-missouri-senate-candidate | title = Biden Suits Get Mixed Results for Missouri Senate Candidate | date = October 26, 2022 | accessdate = July 5, 2023 | agency = Associated Press | via = U.S. News and World Report }} Targets of Schmitt's lawsuits included the administration's policies on oil and gas production, Biden's planned debt forgiveness of student loans, and mask mandates during the COVID-19 pandemic. Missouri v. Biden was one of several high-profile lawsuits Missouri Attorney General Eric Schmitt filed against the Biden administration.{{cite web |last=Wicentowski |first=Danny |date=October 26, 2022 |title=How AG Schmitt's lawsuit is using the First Amendment to get to Dr. Fauci |url=https://news.stlpublicradio.org/show/st-louis-on-the-air/2022-10-26/how-ag-schmitts-lawsuit-is-using-the-first-amendment-to-get-to-dr-fauci |accessdate=July 8, 2023 |work=KWMU}}

In 2022, Elon Musk bought out Twitter and significantly altered the way it operated. He also worked with independent journalists to release the "Twitter Files", a series of internal communications that Musk and the journalists assert show that parts of the U.S. government were working with Twitter to suppress free speech related to election fraud and misinformation about the pandemic.{{cite news|accessdate=2023-09-10|title=Trump Says 'Twitter Files' Bolster Case Jan. 6 Ban Was Illegal|url=https://www.bloomberg.com/news/articles/2023-05-04/trump-says-twitter-files-bolster-case-jan-6-ban-was-illegal|newspaper=Bloomberg.com|date=4 May 2023|via=www.bloomberg.com}}{{cite news | url = https://www.cnn.com/2023/06/06/tech/twitter-files-lawyers/index.html | title = Twitter's own lawyers refute Elon Musk's claim that the 'Twitter Files' exposed US government censorship | first = Brian | last =Fung | date = June 6, 2023 | accessdate = July 8, 2023 | work = CNN }} While legal analysts, speaking with The New York Times, believed that the steps Twitter took to moderate content after contact by the U.S. government were not censorship, many Republicans believed the Twitter Files proved their views were being censored.{{cite web | url = https://www.nytimes.com/2023/02/09/business/free-speech-social-media-lawsuit.html |title = Free Speech vs. Disinformation Comes to a Head | first = Steven Lee | last = Myers | date = February 9, 2023 | accessdate = July 8, 2023 | work = The New York Times }} The Republican-controlled House of Representatives held a set of hearings in March 2023 about the Biden administration "weaponizing" social media for its own purposes. Schmitt (now a U.S. senator) and Louisiana Attorney General Jeff Landry (now the governor of Louisiana) were among those who testified before the committee with information from their case's discovery process, bringing their ongoing lawsuit greater public attention.{{Cite web|url=https://news.yahoo.com/a-mockery-and-a-disgrace-key-takeaways-from-house-gop-hearing-on-social-media-censorship-200501031.html|title='A mockery and a disgrace': Key takeaways from House GOP hearing on social media censorship|date=March 30, 2023|website=Yahoo News}}{{Cite web|url=https://missouriindependent.com/2023/03/30/u-s-house-members-battle-over-weaponization-of-government-in-hearing-on-missouri-lawsuit/|title=U.S. House members battle over 'weaponization' of government in hearing on Missouri lawsuit | first =Adam | last =Goldstein |date=March 30, 2023 | accessdate = July 8, 2023 | work = Missouri Independent }}

The lawsuit alleges that President Joe Biden and his administration were "working with social media giants such as Meta, Twitter, and YouTube to censor and suppress free speech, including truthful information, related to COVID-19, election integrity, and other topics, under the guise of combating 'misinformation'."{{cite web | url = https://ago.mo.gov/home/news/2022/05/05/missouri-louisiana-ags-file-suit-against-president-biden-top-admin-officials-for-allegedly-colluding-with-social-media-giants-to-censor-and-suppress-free-speech | title = Missouri, Louisiana AGs File Suit Against President Biden, Top Admin Officials for Allegedly Colluding with Social Media Giants to Censor and Suppress Free Speech | date = May 5, 2022 | accessdate = July 5, 2023 | archive-url = https://archive.today/20220506044151/https://ago.mo.gov/home/news/2022/05/05/missouri-louisiana-ags-file-suit-against-president-biden-top-admin-officials-for-allegedly-colluding-with-social-media-giants-to-censor-and-suppress-free-speech | archive-date = May 6, 2022 | publisher = Eric Schmitt }} The lawsuit was co-filed with Louisiana's Attorney General Jeff Landry in May 2022 in the United States District Court for the Western District of Louisiana. Additional plaintiffs were added several months later, including Jim Hoft, owner of The Gateway Pundit, a conservative publication,{{cite news | url = https://missouriindependent.com/2022/11/21/missouri-ag-aligns-with-st-louis-conspiracy-theorist-in-social-media-lawsuit/ | title = Missouri AG aligns with St. Louis conspiracy theorist in social media lawsuit | first = Jason | last = Hancock | date = November 21, 2022 | accessdate = July 6, 2023 | work = Missouri Independent }} and Jay Bhattacharya and Martin Kulldorff, academics who co-authored the Great Barrington Declaration, which questioned the government's handling of the COVID-19 pandemic.{{cite news | url = https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html | title = Federal Judge Limits Biden Officials' Contacts With Social Media Sites | first1 = Steven Lee | last1 = Myers | first2 = David | last2 = McCabe | date = July 4, 2023 | accessdate = July 8, 2023 | work = The New York Times }}

The plaintiffs obtained subpoenas in October and November 2022 from former and current members of the Biden administration, including Anthony Fauci, who served as Chief Medical Advisor to the President; Karine Jean-Pierre, who was the White House Press Secretary; and Kate Starbird, who served as an academic advisor to the Cybersecurity and Infrastructure Security Agency.{{cite web |url=https://www.kansascity.com/news/politics-government/article265402976.html |url-status=live |archive-url=https://web.archive.org/web/20220907150124/https://www.kansascity.com/news/politics-government/article265402976.html |archive-date=2022-09-07 |website=Kansas City Star |first=Daniel |last=Desrochers |title=Judge says Fauci, Jean-Pierre have to turn over emails to social media companies to Schmitt }} The government attempted to block these deposition requests, but only a few such requests were granted.{{cite web | url = https://missouriindependent.com/briefs/missouri-ag-set-to-depose-anthony-fauci-in-social-media-lawsuit/ | title = Missouri AG set to depose Anthony Fauci in social media lawsuit | first = Jason | last = Hancock | date = November 22, 2022 | accessdate = July 8, 2023 | work = Missouri Independent }} Fauci attended a deposition in November 2022, which Schmitt claimed proved that social media censored content based on what Fauci said during the pandemic.{{cite web | url = https://wpde.com/news/nation-world/fauci-says-i-dont-recall-174-times-during-deposition-about-collusion-with-social-media-missouri-attorney-general-eric-schmitt-louisiana-attorney-general-jeff-landry | title = Fauci said 'I don't recall' 174 times during deposition about collusion with social media | first = Alec | last = Schemmel | date = December 6, 2022 | accessdate = July 8, 2023 | work = WPDE-TV | agency = The National Desk }}

Hearings for the case were held in May 2023. Judge Doughty issued his ruling on July 4, 2023, issuing a preliminary injunction against several Biden administration officials from contacting social media services for "the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech."{{Cite news|url=https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html|title=Federal Judge Limits Biden Officials' Contacts With Social Media Sites|first1=Steven Lee|last1=Myers|first2=David|last2=McCabe|work=The New York Times |date=July 4, 2023|via=NYTimes.com}} In his 155-page ruling, Doughty wrote: "The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country."{{Cite web|url=https://www.theverge.com/2023/7/4/23783822/free-speech-ruling-missouri-v-biden-dhs-fbi-cisa|title=US judge blocks Biden officials from contacting social media sites|first=Richard|last=Lawler|date=July 4, 2023|website=The Verge}} He continued: "If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history. The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition."

Government agencies covered by the injunction included the Department of Justice, Department of Health and Human Services, State Department, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation. In addition to numerous social media companies, the injunction blocks the government from communicating with three academic programs at Stanford University and the University of Washington that study the spread of misinformation online: the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory. The injunction allows for exceptions related to criminal activity and national threats.{{cite news | url = https://apnews.com/article/social-media-protected-speech-lawsuit-injunction-d8070ef43b3b89e8e76b4569c77446d9 | title = Judge's order limits government contact with social media operators, raises disinformation questions | first1 = Kevin | last1 = McGill | first2 = Matt | last2 = O'Brien | first3 = Ali | last3 = Swenson | date = July 5, 2023 | accessdate = July 8, 2023 | work = Associated Press News }}

The U.S. Department of Justice filed its intent to appeal to the United States Court of Appeals for the Fifth Circuit the next day.{{cite news | url = https://www.npr.org/2023/07/05/1186108696/social-media-us-judge-ruling-disinformation | title = U.S. is barred from combating disinformation on social media. Here's what it means | first1 = Laurel | last1 = Wamsley | first2 = Shannon | last2 = Bond | date = July 5, 2023 | accessdate = July 8, 2023 | work = NPR}} The Department of Justice sought a stay of Doughty's injunction, saying that it would prevent them from "working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes" ahead of the 2024 elections.{{cite news | url = https://www.washingtonpost.com/technology/2023/07/08/social-media-injunction-doughty-biden-2024-elections/ | title = Social media injunction unravels plans to protect 2024 elections | first1 = Cat | last1 = Zakrzewski | first2 = Naomi | last2= Nix | first3= Joseph | last3= Menn | date = July 8, 2023 | accessdate = July 8, 2023 | newspaper = Washington Post }} Legal experts, speaking to Reuters, said that while the case has merit, Doughty's preliminary injunction will face tough legal challenges on appeal.{{cite news | url = https://www.reuters.com/world/us/order-limiting-biden-officials-social-media-outreach-shaky-legal-ground-experts-2023-07-06/ | title = Order limiting Biden officials' social media outreach on shaky legal ground, experts say |first1 = Brendan | last1 = Pierson | first2 = Andrew | last2 = Goudsward | date = July 6, 2023 | accessdate = July 8, 2023 | work = Reuters }} On July 14, 2023, the Fifth Circuit granted a temporary administrative stay of the injunction until further order.{{cite news |last1=Zakrzewski |first1=Cat |title=5th Circuit pauses order restricting Biden administration's tech contacts |url=https://www.washingtonpost.com/technology/2023/07/14/5thcircuit-biden-socialmedia-stay/ |newspaper=Washington Post |date=July 14, 2023 | accessdate = July 14, 2023 }}

On September 8, 2023, the Fifth Circuit ruling upheld the district court ruling against the Biden administration. The court found that some of the communications between the federal government and the social media companies to try to fight alleged COVID-19 misinformation "coerced or significantly encouraged social media platforms to moderate content", which violated the First Amendment.{{cite news | url = https://www.cnn.com/2023/09/08/politics/biden-administration-social-media-lawsuit/index.html | title = Appeals court says Biden admin likely violated First Amendment but narrows order blocking officials from communicating with social media companies | first = Tierney |last = Snead | date = September 8, 2023 | accessdate = September 9, 2023 | work = CNN }} But the court also ruled that Doughty's preliminary injunction was too broad, as it blocked some legal social media content created by government, and narrowed the injunction to prevent the government from taking "actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies' decision-making processes."{{Cite web|url=https://reason.com/volokh/2023/09/10/free-speech-social-media-firms-and-the-fifth-circuit/|title=Free Speech, Social Media Firms, and the Fifth Circuit|date=September 10, 2023}} The court placed enforcement of the injunction on hold for ten days to allow any appeals to be filed.{{cite web |url=https://www.usatoday.com/story/money/2023/09/08/biden-administration-coerced-facebook-court-rules/70800723007/ |first=Jessica |last=Guynn |website=USA Today |title=Biden administration coerced social media giants into possible free speech violations: court |date=2023-09-08 |url-status=live |archive-url=https://web.archive.org/web/20230912100130/https://www.usatoday.com/story/money/2023/09/08/biden-administration-coerced-facebook-court-rules/70800723007/ |archive-date=2023-09-12 }} Supreme Court Justice Samuel Alito granted a temporary stay of the order on September 14, 2023, lasting initially until September 23 and then extended to September 27, to give both parties the ability to argue further on the appeal.{{cite web | url = https://www.bloomberg.com/news/articles/2023-09-14/supreme-court-temporarily-halts-social-media-curbs-in-biden-case | title = Supreme Court Pauses Curbs on Biden Social Media Contacts | first1 = Greg | last1 = Storh | first2 = Emily | last2 = Brimbaum | date = September 14, 2023 | accessdate = September 14, 2023 | work = Bloomberg News }}{{cite web | url = https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23a243.html |title=No. 23A243: Vivek H. Murthy, Surgeon General, et al., Applicants v. Missouri, et al. |website=supremecourt.gov |access-date=2023-11-05}} The Fifth Circuit Court of Appeals expanded the injunction issued in September to include the Cybersecurity and Infrastructure Security Agency (CISA), ruling that it used frequent interactions with social media platforms "to push them to adopt more restrictive policies on election-related speech".{{cite web | url = https://www.usatoday.com/story/money/2023/10/03/fifth-circuit-cisa-ruling-biden-first-amendment/71051110007 |title=Federal appeals court expands limits on Biden administration in First Amendment case |publisher=USA Today |date=2023-10-03 |access-date=2023-11-05}}

In October 2023, the Supreme Court agreed to hear Murthy v. Missouri.{{Cite web|url=https://www.theverge.com/2024/3/15/24101298/supreme-court-murthy-missouri-speech-social-media|title=SCOTUS to hear case on how much the government can talk to social media companies|first=Lauren|last=Feiner|date=March 15, 2024|website=The Verge}} The Court also lifted the injunctions set by the lower courts, allowing the federal government to continue to contact social media companies without restrictions while the case continues. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the lifting of the injunctions, with Alito writing, "Government censorship of private speech is antithetical to our democratic form of government, and therefore today's decision is highly disturbing."{{cite web | url = https://www.nytimes.com/2023/10/20/us/supreme-court-social-media-biden.html | title = Supreme Court Lifts Limits for Now on Biden Officials' Contacts With Tech Platforms | first = Adam | last = Liptak | date = October 20, 2023 | accessdate = October 20, 2023 | work = The New York Times }} The Court heard oral argument on March 18, 2024.[https://www.cnn.com/politics/live-news/supreme-court-first-amendment-arguments-03-18-24/h_bf628443a3e731586c10de74666f1e14 Supreme Court hears arguments on First Amendment cases] CNN. March 18, 2024.

The Supreme Court issued its decision on June 26, 2024. The 6–3 majority determined that neither the states nor other respondents had standing under Article III, reversing the Fifth Circuit decision. Justice Amy Coney Barrett wrote the opinion, stating: "To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction."{{cite web | url=https://www.cnn.com/2024/06/26/politics/social-media-disinformation-supreme-court-ruling/index.html | title=Supreme Court allows White House to press social media companies to remove disinformation | CNN Politics | website=CNN | date=June 26, 2024 }}

Justice Alito wrote the dissent, joined by Thomas and Gorsuch. He wrote that this was "one of the most important free speech cases to reach this Court in years", that the respondents had brought enough evidence to suggest the government's actions were unconstitutional, but that the Court "shirks that duty and 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. That is regrettable."

On January 20, 2025, the first day of his second term as president, Donald Trump signed the Restoring Freedom of Speech and Ending Federal Censorship executive order. A response to actions the government allegedly took under Biden that were central to the case, the order would prevent the federal government from interfering with any protected free speech.{{cite news | url = https://www.reuters.com/world/us/trump-signs-executive-order-that-he-says-will-protect-free-speech-2025-01-21/ | title = Trump executive order on free speech draws criticism | first1 = Kanishka | last1 = Singh | first2 = Raphael | last2 = Satter | date = January 20, 2025 | accessdate = January 20, 2025 | work = Reuters }}

{{reflist}}

• [https://www.courtlistener.com/docket/67563473/238/1/state-of-missouri-v-biden/ The initial decision of the court of appeals] (September 3, 2023), later [https://scholar.google.com/scholar_case?case=17360913717016261250 withdrawn and substituted] (October 3, 2023).
• [https://storage.courtlistener.com/recap/gov.uscourts.lawd.189520/gov.uscourts.lawd.189520.294.0_6.pdf The district court's injunction] and [https://storage.courtlistener.com/recap/gov.uscourts.lawd.189520/gov.uscourts.lawd.189520.293.0_3.pdf memorandum] (July 4, 2023) (via CourtListener).
• [https://www.c-span.org/video/?534283-1/murthy-v-missouri-supreme-court-oral-argument SCOTUS oral arguments audio]
• [https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-411_o759.pdf SCOTUS oral arguments transcript]
• [https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf SCOTUS opinion]

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