Amidst the COVID-19 pandemic, the federal government asked social media companies to take down misinformation about the spread of coronavirus and mask and vaccine efficacy. The Supreme Court is now considering a legal challenge to the constitutionality of these informal requests, known as government “jawboning”.
On March 6, in an NYU Law Forum sponsored by Latham & Watkins, experts in governmental legal practices, private sector platforms, and free speech advocacy convened at NYU Law to discuss the case, Murthy v. Missouri. In Murthy, the Supreme Court will consider whether or not these content moderation requests are “coercive”—suppressing free speech, rather than merely persuading companies to enforce their policies—and violate social media users’ First Amendment rights.
The panelists included Jameel Jaffer, executive director of Columbia University’s Knight First Amendment Institute and executive editor of Just Security; Kathryn Ruemmler, chief legal officer and general counsel at Goldman Sachs and former White House counsel to President Barack Obama; and Colin Stretch, chief legal officer and corporate secretary at Etsy and former general counsel at Facebook (now Meta). Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, moderated the discussion
Panelists considered how they might evaluate government communications for “coerciveness”, and the potential implications of Court’s decision for the future of content moderation in social media and beyond.
Watch the panel discussion on video:
Selected remarks:
Colin Stretch: “If you can lift out of the politicization of the issue, it becomes in my view a relatively straightforward case. Do you want the companies to be able to talk to the government…Do you want the government to be able to talk to the companies? I say yes.” (Video, 12:45)
Jameel Jaffer: “I think it’s entirely legitimate for a government to pressure private speech intermediaries to be more attentive to what the government views as the public interest…We want our government to be able to share whatever the [Centers for Disease Control and Prevention] comes up with [with] private speakers.…On the other side…you have the interests of the companies—the social media companies or the speech intermediaries more broadly—and their users, in having expressive spaces that are free from government coercion…. And the way that our law…balances those two interests is through this distinction between persuasion on one hand and coercion on the other.” (Video, 26:38)
Kathryn Ruemmler: “I think if I were on the Supreme Court..I’d say it better be really, really clear that there was in fact coercion, and that the recipient of the speech actually felt coerced. And at least in my review of the record, that’s just not present here. There’s no evidence…that anybody at any of these companies actually felt coerced. There’s no internal emails saying: ‘If we don’t do this, they’re going to bring an antitrust case against us’...and ‘We’d better do what they say.’ ” (Video, 33:54)
Posted on April 25, 2024