Social Media v. The Supreme Court: How Supreme Court Justices Define First Amendment Censorship through Murthy v. Missouri

Kelly Cabrera, Kaitlyn Giannetto, and Maryam Ali

In the age of social media, it is important to focus on the distinction between censorship and freedom of speech. Misinformation is content used to mislead others, which has been flagged or, in the case of Murthy v. Missouri, 600 U.S. ___ (2024), censored. Social media is constantly covering recent events, actively shaping public opinion through curated presentations of information made to fit a specific narrative. The question is whether censoring misinformation impedes the First Amendment right. The legal focus of this case was whether the federal government’s influence over censorship within social media infringed upon the freedom of speech protected by the First Amendment. Supreme Court Justices have set a precedent through Murthy that endangers First Amendment protections by reshaping free speech on Facebook. This case discusses controversial topics of COVID-19 and the 2020 presidential election, as well as federal involvement in censorship within social media platforms. This case sets an important precedent for ongoing cases such as Free Speech Coalition v. Colmenero, because it addresses  age requirements for social media use and the need to flag or disclose pornographic content. With the modernization of social media, Murthy will not only set a precedent for social media use in regard to free speech, but also endanger our First Amendment right to freedom of speech itself. 

Social media allows for audiences to see events happening in real time, however, the rapid spread of information, comes with the spread of misinformation. Due to the speed of influence it can have on others, compared to word of mouth, it creates a moral dilemma for sharing information through social media and influencing readers negatively. Although Americans have the right to freely express their own opinions under the First Amendment of the Constitution, social media users feel these rights have been infringed upon. Murthy began with the states of Missouri and Louisiana alleging that social media platforms were blocking their posts, including posts that were labeled “misinformation” by platforms during the early stages of the pandemic. “Based on extensive findings of fact that spanned 82 pages, the District Court held that the plaintiffs were likely to be able to prove their claims and were threatened with irreparable harm” [1]. The Court of Appeals decided the plaintiffs proved the existence of “a coordinated campaign” of censorship through social media orchestrated by federal officials. This case went through the Fifth Circuit Court of Appeals, where it was found that they were “erred” in their treatment of the defendant, plaintiffs, and platforms as a unified whole [2]. Additionally, the Fifth Circuit decision was detrimental to the First Amendment because “the injunction imposes unprecedented limits on federal officials’ ability to address matters of public concern, national security, and public health, and that it violates separation-of-powers principles by making federal judges the overseers of the Executive Branch’s communication with private companies” [3]. This further infringes on First Amendment rights and sets a troubling precedent resulting in the case being reopened for the Supreme Court to review.

Murthy is a critical example of the necessity for First Amendment protections, highlighting serious political divides driven by social media platforms such as Facebook. The concern of misinformation and censorship within social media exhibited the different opinions of court officials: “The flawed initial court ruling included carve-outs that authorized executive branch communication with social media platforms on issues such as national security threats and election interference, and the Supreme Court lifted the lower court’s injunction entirely when it announced it would review the case” [4]. The bearing and precedent held in this case are meant to redefine the First Amendment with the use of social media. The 6-3 ruling highlights the ideological divide of the Supreme Court and its impact on American citizens, which emphasizes on how such cases impede on our First Amendment rights. 

For the Supreme Court to determine whether the government has coerced or encouraged Facebook to limit misinformation by suppressing First Amendment protections, the majority of Justices in Murthy took a two-pronged approach when looking at the evidence. Justice Barrett authored the opinion of the court and was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Jackson [5]. The first element analyzed was whether the plaintiffs suffered from a substantial risk that an injury could be sustained shortly due to the actions of the government. The second element looked into the need for a link between past social media restrictions and government actions. The majority determined that the Fifth Circuit Court of Appeals “glossed over complexities in the evidence” [6] and that the defendants failed to show enough evidence to fulfill both elements. This meant that government actions could possibly undermine First Amendment protections that would be overlooked due to the high bar set for evidence required in future cases regarding possible speech coercion.

The Supreme Court’s involvement in First Amendment protections related to free speech on platforms like Facebook, as highlighted in Murthy, is not unprecedented. In Lindke v. Freed, 601 US (2024), Justice Barrett delivered an opinion that distinguishes personal expression from official government activity in Facebook profiles. She emphasized the need for strong evidence before attributing government influence over social media platforms, reinforcing her textualist approach in First Amendment cases [7]. In Elonis v. United States, 575 US (2015), Chief Justice Roberts emphasized the need for clear intent in order to criminalize speech as a threat on Facebook. He showcased a cautious approach to First Amendment protections by balancing it with public safety concerns as he sought substantial evidence before limiting free speech on social media [8]. In Packingham v. North Carolina, 582 US (2017), both Justice Kagan and Justice Sotomayor fully supported everyone having access to platforms such as Facebook so citizens could exercise the First Amendment principle and its freedom of speech protections [9]. In Manhattan Community Access Corp. v. Halleck, 587 US (2019), Justice Kavanaugh reflects on his interpretation that private companies like Facebook are generally not bound by First Amendment restrictions, allowing them discretion in moderating content [10]. Lastly, Justice Jackson in Moody v. NetChoice, LLC, 603 US __ (2024), supporting Parts I, II, and III–A of the opinion, recognized that private social media platforms, like Facebook, generally have the right to moderate content under the First Amendment [11]. These cases illustrate the Court’s evolving approach to balancing free expression, government influence, and platform autonomy.

The manner in which the majority opinion was crafted was based on the lack of evidence and misconstrued facts, thus making the Justices sway away from making a decision that could redefine government limits on social media regulation under the First Amendment. The Supreme Court has observed the growing power of social media with regards to free speech but has remained skeptical of Facebook’s control over what it believes to be misleading or false information because it substitutes the power of the state [12]. Justices on this opinion have concurred that “social media moderation practices do not reflect speech or expression” [13]. However, the door was left open for continued debate on the balance between public safety, misinformation, and a heavy burden on evidence that could mean danger to First Amendment protections in future cases. 

Although the majority opinion in Murthy was against the implications of censorship, there still was a dissent amongst the Supreme Court. With a ruling of 6-3, the minority dissent was authored by Justice Samuel Alito and co-opted by Justices Clarence Thomas and Neil Gorsuch [14]. Justice Alito took a more direct approach when looking at the fundamentals of what the case dictated, which, in his opinion, was an attack on the First Amendment. He stated in his argument that government officials had been coercive towards Facebook executives in getting them to disseminate information regarding COVID-19. He found that they were being “implicitly threatened,” and under these circumstances, had no choice but to give in [15]. Facebook referred to the actions taken in Murthy as a kind of “Jawboning,” when outside agencies are being coerced by government officials informally [16]. Alito referred specifically to the case of Jill Hines, a health activist on Facebook who was posting against mask and vaccine mandates. She had several instances where the White House contacted Facebook to remove content, which in turn hindered her. Justice Alito saw this as a dubious form of censorship and lamented the higher courts for allowing this campaign to continue [17].  

First Amendment rights have been challenged and interpreted in online media cases on numerous occasions. In Lindke v. Freed, Justice Alito wrote a concurring opinion in which he agreed with Justice Barett's interpretation of the First Amendment [18], proving that while there was a differing opinion in Murthy, it isn’t the prevailing view on the First Amendment. Although in Moody v. Netchoice LLC, Justices Alito, Thomas, and Gorsuch agreed with the majority opinion, Justice Alito went against certain parts of the ruling, stating that “Netchoice had failed to prove that the laws were facially unconstitutional, everything else the court decided was nonbinding dicta” [19]. Similarly, in 2021, Justice Thomas issued a concurring opinion in Biden v. Knight First Amendment Institute, 593 US __ (2021), regarding the case of former president Trump being banned from X (formerly Twitter), even though the case itself was dismissed [20]. He relegated his opinion to all mass social media corporations,  issuing a belief that social media companies should be neutral arbitrators of information, and any removal of information from the platform  would be seen as censorship [21]. Justice Thomas’ opinion supports the idea that there is no single, concise definition of censorship within the Supreme Court. The outlook of the dissenting party reaffirms the endangerment of the First Amendment by the Justices themselves.

Ultimately, the ruling in Murthy signals a critical shift in the ongoing debate over the intersection of social media, government intervention, and First Amendment rights. This sets a dangerous precedent that could weaken freedom of speech protections. As social media platforms like Facebook become increasingly central to public opinion in polarized political environments, the Court’s cautious stance on government influence over content moderation raises important questions about the future of First Amendment protections. The Murthy decision reflects a growing tension between the need to combat misinformation and the constitutional right to free speech, questioning the role of private companies in regulating content. This tension can be witnessed through the different approaches and ideologies taken by Supreme Court Justices when it comes to defining censorship and misinformation. With the high evidentiary bar set in Murthy, future cases may require a substantial amount of evidence of government coercion before social media restrictions can be deemed unconstitutional, allowing private platforms more leeway in moderating content. This could lead to a more lenient stance on censorship, further endangering First Amendment protections at a time when social media’s role in shaping democratic discourse is undeniable. As the influence of social media continues to grow, the Supreme Court must confront the evolving legal challenges at the intersection of free speech and digital content moderation, where the stakes for First Amendment rights are higher than ever.

[1] Murthy v. Missouri, Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/23A243 (last visited Nov. 5, 2024). 

[2] Murthy v. Missouri, 603 U.S. _ (2024)

[3] Murthy v. Missouri: The First Amendment and Government Influence on Social Media Companies’ Content Moderation, Constitution Annotated, https://constitution.congress.gov/browse/essay/intro.9-2-3/ALDE_00000075/ (last visited Nov. 5, 2024)

[4] Kat Duffy, The Supreme Court Was Right on Murthy v. Missouri, Council on Foreign Relations (Jun. 28, 2024), https://www.cfr.org/article/supreme-court-was-right-murthy-v-missouri.

[5] Murthy v. Missouri, 603 U.S. _ (2024)

[6] Id. 

[7] Lindke v. Freed, 601 U.S. _ (2024).

[8] Diana Palacios, Elonis v. United States: So What’s a True Threat?, Davis Wright Tremaine LLP (Aug., 2015), https://www.dwt.com/blogs/media-law-monitor/2015/07/elonis-v-united-states-so-whats-a-true-threat.

[9] Taylor Moore, Packingham v. North Carolina: A Win for Free Expression Online, Center for Democracy & Technology (June 20, 2017), https://cdt.org/insights/packingham-v-north-carolina-a-win-for-free-expression-online/.

[10] Manhattan Community Access Corp. v. Halleck, 587 U.S. ___ (2019).

[11] Moody v. NetChoice, LLC, 603 U.S. ____ (2024).

[12] Carrie Johnson, Supreme Court justices appear skeptical of Texas and Florida social media laws, National Public Radio (Feb. 26, 2024), https://www.npr.org/2024/02/26/1233506273/supreme-court-social-media-laws.

[13] Brigid McCabe, A First Amendment Right to Censor: Social Media Regulation

and Freedom of Speech in the NetChoice Cases, 20 Column. Und. L. Rev. 28 (2024).

[14] Murthy v. Missouri, 603 U.S. _ (2024)

[15] Id.

[16] Amy Howe, Justices side with Biden over government’s influence on social media content moderation, SCOTUSblog (Jun. 26, 2024), https://www.scotusblog.com/2024/06/justices-side-with-biden-over-governments-influence-on-social-media-content-moderation/. 

[17] David Inserra, Summary of Murthy V. Missouri Oral Arguments, Cato Institute (Mar. 19, 2024), https://www.cato.org/blog/summary-murthy-v-missouri-oral-arguments. 

[18] Lindke v. Freed, 601 US _ (2024).

[19] Scott Bomboy, Supreme Court sends major Internet case back to the lower courts, National Constitution Center (Jul. 1, 2024), https://constitutioncenter.org/blog/supreme-court-sends-major-internet-case-back-to-the-lower-courts. 

[20]  Biden v. Knight, 593 US __ (2021)

[21] Mark MacCarthy, Justice Thomas sends a message on social media regulation, Brookings (Apr. 9, 2021), https://www.brookings.edu/articles/justice-thomas-sends-a-message-on-social-media-regulation/.