Chamber Urges SCOTUS to Apply 1963 ‘Framework’ in Deciding Murthy v. Missouri

The government’s U.S. Supreme Court petition to defeat the injunction barring federal officials from coercing social media platforms to moderate their content “raises critical questions about how far the government can go in attempting to influence the actions of private social media companies that are deciding "what speech to disseminate,” said the U.S. Chamber of Commerce in an amicus brief Friday (docket 23-411) in Murthy v. Missouri.

The chamber takes no position about whether the government “unconstitutionally pressured private social media services to remove plaintiffs’ speech or otherwise violated the First Amendment,” said the brief. It rather urges SCOTUS to apply the “correct analytical framework” -- the 1963 decision in Bantam Books v. Sullivan -- in answering those questions, rather than the “state-action framework” applied by the district court and the 5th U.S. Circuit Appeals Court in imposing, and later modifying, the injunction, it said. In Bantam, the court ruled as unconstitutional a Rhode Island law that set up a state commission to protect minors from offensive material.

Whatever approach SCOTUS takes, it should “strictly limit its decision” to addressing the constitutionality of the government’s challenged conduct, said the brief. It should refrain from suggesting “that potential government overreach converts private publishers into state actors, whose own First Amendment rights could thereby be jeopardized,” it said.

The chamber’s members include social media companies and other businesses “that interact with the government in the normal course of their operations,” said the brief. The way the district court and the 5th Circuit “framed this case” -- asking whether the government’s alleged conduct transformed private social media companies’ decisions to remove content into state action subject to the First Amendment -- could have major implications for the chamber’s members and their own First Amendment rights, it said.

There’s a more “straightforward” and “analytically sound” way to decide whether the government’s conduct here was unconstitutional, and if so, “to impose an appropriate remedy without causing serious collateral consequences for the private companies that the government allegedly targeted,” said the brief. The sound approach is to apply the framework of Bantam Books -- a case that’s “structurally identical to this one,” it said.

The Supreme Court in its decision in Bantam Books analyzed whether the government, in pressuring bookstores to stop selling books that they disapproved of, “violated the First Amendment rights of the publishers whose books were ultimately removed from the stores,” said the brief. But in ruling that that the government crossed the line, SCOTUS didn’t suggest that the bookstores “became state actors subject to liability for deciding which books to carry,” it said. It held only that the government’s pressure on the bookstores violated the publishers’ First Amendment rights, it said.

The plaintiffs here, as in Bantam Books, maintain that the government pressured private social media companies to remove content that the government disapproved of, said the brief. And here, as in Bantam Books, SCOTUS “should simply analyze whether the government violated the First Amendment by improperly pressuring those private entities to remove disfavored speech, it said.

The question isn’t whether the government’s alleged wrongdoing “transformed the coerced private parties into state actors,” said the brief. The question rather is whether the government’s pressure “itself violated the First Amendment,” it said. If SCOTUS confines itself to that issue, “it will apply the correct law while avoiding potentially serious collateral consequences for the private companies,” it said.