Missouri v. Murthy

Brigid Bondoc & Atiq Chowdhury*

Why It Made the List

At a time when the U.S. Food and Drug Administration’s Commissioner Califf has made fighting “misinformation” online a key priority, Missouri v. Murthy^[1] could have significant implications for how closely the federal government, including the FDA, can work with social media companies to combat inaccurate information about FDA-regulated products. Plaintiffs Missouri, Louisiana, and a group of social media users alleged government officials, including the President, the Surgeon General, the U.S. Department of Health and Human Services, the National Institutes of Health, the Centers for Disease Control and Prevention, and FDA,^[2] “coerced” social media platforms to target their “conservative-leaning free speech” and censor their social media posts relating to a host of COVID-19 issues and election integrity in the 2020 presidential election, among other issues, thereby violating their First Amendment rights.^[3] The federal government disagreed with plaintiffs’ allegations of censorship, arguing that it worked cooperatively with the social media platforms and sought to “persuade” them to combat public health misinformation, all within the realm of permissible government speech.^[4] After significant narrowing of the facts and circumstances at issue in the lower courts, the case is currently pending before the United States Supreme Court.

Discussion

Factual and Procedural Background

In 2022, Missouri and Louisiana Attorneys General, together with several private plaintiffs,^[5] filed suit in the U.S. District Court for the Western District of Louisiana alleging that the federal government and certain government officials violated the First Amendment by “collud[ing] with and/or coerc[ing] social-media platforms” to censor “conservative-leaning free speech” content on their platforms.^[6] Specifically, plaintiffs asserted “that by using emails, public and private messages, [and] public and private meetings,” defendants pressured social media platforms to target and suppress topics such as election integrity in the 2020 presidential election, the origin of COVID-19, and the “efficiency”^[7] of COVID-19 vaccines, masks, and lockdowns, among other assertions.^[8]

The district court’s fact-finding focused on examples of high-level White House officials contacting firms like X (formerly known as Twitter), YouTube, Google, and Facebook/Meta to “partner” on goals like reducing viewership of “vaccine-hesitant content.”^[9] One email sent to Facebook suggested “‘warning screens’ before linking to domains known to promote vaccine misinformation.”^[10] Other emails from government officials sought to better understand what action the companies were taking to curb the spread of COVID-19 misinformation.

Based on these events, plaintiffs argued that “Defendants have threatened adverse consequences to social-media companies, such as reform of Section 230 immunity under the Communications Decency Act, antitrust scrutiny/enforcement, increased regulations, and other measures, if those companies refuse to increase censorship.”^[11] In response, defendants argued that they “never demanded the social-media companies to suppress postings or to change policies, and the changes were due to the social-media companies’ own independent decisions.”^[12]

On July 4, 2023, the district court issued a preliminary injunction against certain defendants, not including FDA or its officials, finding they “likely ‘jointly participated’ with the social-media companies to such an extent that said defendants have become ‘pervasively entwined’ in the private companies’ workings to such an extent as to blur the line between public and private action.”^[13] In other words, defendants “significantly encouraged” the social media companies to such an extent that their actions should be considered government actions.^[14]

The Fifth Circuit’s Decision

On September 8, 2023, the Fifth Circuit vacated much of the district court’s preliminary injunction, except for one prohibition, which was modified because it was “both vague and broader than necessary to remedy the plaintiffs’ injuries.”^[15]

Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions. Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government’s message as alluding to some form of punishment.^[16]

The court determined/decided the plaintiffs had standing “because they have demonstrated ongoing harm from past social-media censorship and a likelihood of future censorship, both of which are injuries traceable to government-coerced enforcement of social-media platforms’ content-moderation policies and redressable by an injunction against the government officials.”^[17]

When examining whether the defendants’ statements to plaintiffs can “reasonably be construed” as threats of adverse consequences, the court used the Second Circuit’s “four-factor test for distinguishing coercion from persuasion.”^[18] The court concluded the defendants’ statements (specifically the White House, acting in concert with the Surgeon General’s office) were coercive based on several factors including, but not limited to, the context and defendants’ tone, and defendants’ “express and implied references to adverse consequences” unless the plaintiffs complied.^[19] The court also found the defendants “significantly encouraged the platforms to moderate content by exercising active, meaningful control over those decisions” and “entangled themselves in the platforms’ decision-making processes, namely their moderation policies,” rendering such decisions state actions likely violating the First Amendment.^[20]

Lastly, the court agreed with the district court that the plaintiffs’ “[d]eprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury.”^[21] While the court acknowledged that “[i]t is true that the officials have an interest in engaging with social-media companies, including on issues such as misinformation and election interference,” the government “is not permitted to advance these interests to the extent that it engages in viewpoint suppression.”^[22]

Supreme Court

On October 20, 2023, the Supreme Court granted the federal government’s application for a stay of the preliminary injunction by the district court as modified by the Fifth Circuit.^[23] The Court also granted certiorari and will address the following questions: “(1) Whether respondents have Article III standing; (2) Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) Whether the terms and breadth of the preliminary injunction are proper.”^[24]

A significant number of amicus briefs were filed in this case, representing a wide array of opinions. For example, the American Academy of Pediatrics argued the government has a “compelling interest” in “combatting vaccine misinformation” to “prevent factually incorrect statements from costing people their lives.”^[25] In contrast, the Association of American Physicians and Surgeons supported the right to disseminate vaccine criticism “especially when vaccination is administered without a risk-benefit analysis and informed consent” and “[t]he proper antidote to alleged false information is a stronger right to free speech, not a weaker one.”^[26]

During the oral arguments held on March 18, 2024, some of the Justices’ questions suggested they may be leaning toward a decision on standing, which would obviate the need to address the merits. Specifically, some Justices expressed skepticism that plaintiffs’ alleged harms could be traced to government action and that granting an injunction would redress those injuries.^[27] On the merits, it appeared that most of the justices were skeptical that the communications from the federal government to social media firms amounted to coercion, citing examples of the government frequently “encouraging press to suppress their own speech” without violating the First Amendment.^[28]

Impact of the Case

There are competing interests at stake in defining the boundary between coercion and persuasion. On the one hand, governments have a compelling interest in ensuring that their citizens receive accurate information about public health issues; on the other hand, First Amendment jurisprudence is clear that the government may not engage in viewpoint discrimination. While the plaintiffs in Murthy v. Missouri may not prevail in this case due to a lack of standing, the overall impact of the litigation may have a chilling effect on public health agencies’ outreach efforts. Without clear guidance from the Court on the merits, the government may overcautiously and unnecessarily constrain its engagement with important platforms for sharing public health information.

Nonetheless, FDA, and Commissioner Califf in particular, has undertaken significant efforts to stop the spread of misinformation about FDA-regulated products. Recently, FDA published a website entitled “Rumor Control” in an effort to “provide facts” and “help stop the spread of false rumors.”^[29] Issues addressed by this website include, among other things, the importance of childhood vaccination, whether thermograms are an appropriate substitute for mammograms, and whether consumers can rely on marketing claims that a dietary supplement is “FDA Approved.” The website even contains instructions for the public on how to report misinformation to various social media platforms. Commissioner Califf also recently co-authored an article in a prominent medical journal discussing the risks of misinformation about the safety of vaccines and the resulting trend of lower vaccine uptake.^[30] While this type of communication by FDA and its officials may not constitute coercion, even under the plaintiffs’ theory in Murthy, given the lack of FDA’s direct interaction with social media platforms, other efforts to “coordinate” with social media could cross the line. If the Court reaches the merits, Murthy may provide guidance on where the line is between moderating public health misinformation and state action amounting to censorship.

[*] Brigid Bondoc is a Partner at Morrison Foerster, where she counsels life sciences companies on a wide range of U.S. Food and Drug Administration (FDA) pre- and post-market regulatory issues. Atiq Chowdhury is an Associate at Morrison Foerster, where he advises FDA-regulated companies on a wide range of regulatory, enforcement, and compliance matters, with a specific focus on diagnostic and digital health devices.

[1]   The case was originally styled as Missouri v. Biden, but the President was not included in the injunction issued by the district court. This case has frequently been referred to as “the jawboning case.”

[2]   FDA was not named in the initial complaint but was added, along with certain FDA officials, by the second amended complaint. FDA was not subject to the injunction issued by the district court.

[3]   Mem. Ruling on Req. for Prelim. Inj. at 4, 9, Missouri v. Biden, No. 3:22-CV-01213, Dkt. No. 293 (W.D. La. July 4, 2023).

[4]   Id. at 87, 90, 96.

[5]   The initial complaint was filed by Missouri and Louisiana’s Attorneys General. Several individuals joined an amended complaint a few months later. These individuals included professors at prestigious medical schools that co-authored the Great Barrington Declaration, described in the complaint as “a statement criticizing government-mandated COVID restrictions, which was co-signed by over 930,000 people, including over 62,000 scientists and healthcare professionals.” Other plaintiffs included the founder of The Gateway Pundit, an online news website, and the co-director of Health Freedom Louisiana, a consumer and human rights advocacy organization. Each plaintiff alleged “extensive government-induced censorship of her speech on social media.”

[6]   Mem. Ruling on Req. for Prelim. Inj. at 2, 4, Missouri v. Biden, No. 3:22-CV-01213, Dkt. No. 293 (W.D. La. July 4, 2023).

[7]   Id. at 4 (“In this case, Plaintiffs allege that Defendants suppressed conservative-leaning free speech, such as: . . . (3) suppressing speech about the efficiency of masks and COVID-19 lockdowns; (4) suppressing speech about the efficiency of COVID-19 vaccines . . . .”) (emphasis added).

[8]   Id. at 4, 9.

[9]   Id. at 20.

[10]  Id. (citation omitted).

[11]  Id. at 8.

[12]  Id. at 96.

[13]  Id. at 117.

[14]  Id. at 95.

[15]  Published Op. at 66-71, Missouri v. Biden, No. 23-30445, Dkt. No. 238-1 (5th Cir. Sept. 8, 2023).

[16]  Id. at 71.

[17]  Id. at 27.

[18]  Id. at 44. (Four-factor test reviews: “(1) the officials’ word choice and tone; (2) the recipient’s perception; (3) the presence of authority; and (4) whether the speaker refers to adverse consequences.” Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4th 700, 715 (2d Cir. 2022)); see also Kennedy v. Warren, 66 F.4th 1199, 1207 (9th Cir. 2023).

[19]  Id. at 51.

[20]  Id. at 52 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). The Fifth Circuit found the district court did not err finding the White House, the Surgeon General, the CDC, and the FBI, likely coerced or significantly encouraged social-media platforms to moderate content, but erred in enjoining the NIAID, the State Department, and CISA. Id. at 59-61.

[21]  Id. at 63 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020); Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012)).

[22]  Id. at 64 (“[i]njunctions protecting First Amendment freedoms are always in the public interest,” the equities weigh in plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298) (quotation marks and citations omitted).

[23]  Murthy v. Missouri, 601 U.S. ___ (2023) (No. 23A243).

[24]  Appl. for a Stay at 40, Murthy v. Missouri, 601 U.S. ___ (Sept. 14, 2023).

[25]  Brief for Am. Acad. of Pediatrics, et al. as Amici Curiae Supporting Petitioners at 4, Murthy v. Missouri, 601 U.S. ___ (Dec. 12, 2023).

[26]  Brief for Ass’n of Am. Physicians and Surgeons as Amicus Curiae Supporting Respondents at 2–3, Murthy v. Missouri, 601 U.S. ___ (Feb. 7, 2024).

[27]  Oral Arg. Tr. at 9–10, 13–14, 44–45, 102–04, 121–22, Murthy v. Missouri, 601 U.S. ___ (Mar. 18, 2024).

[28]  Id. at 71.

[29]  Rumor Control, U.S. Food & Drug Admin. (Apr. 3, 2024), https://www.fda.gov/news-events/rumor-control (last accessed Mar. 26, 2024).

[30]  Peter Marks & Robert Califf, Is Vaccination Approaching a Dangerous Tipping Point?, JAMA (Jan. 5, 2024).