EFF Urges Supreme Court to Set Standard for How Government Can and Can’t Talk to Social Media Sites About Censoring Users’ Posts

First Amendment Bars Coercive Censorship Demands But Some Communications Are Permissible

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WASHINGTON, DC—The Supreme Court should clarify standards for determining if the government permissibly advised or convinced social media companies to censor content from 2020 to 2022, or impermissibly coerced or threatened sites in violation of the First Amendment, the Electronic Frontier Foundation (EFF) said in a brief filed today.

“Government co-option of content moderation systems is a serious threat to freedom of speech,” said EFF Civil Liberties Director David Greene. “But there are clearly times when it is permissible, appropriate, and even good public policy for government agencies and officials to inform, communicate with, attempt to persuade, or even criticize sites—free of coercion—about the user speech they publish.”

In Murthy v. Missouri, Louisiana, Missouri, and several individuals have accused federal agencies and officials of illegal “jawboning”—urging private persons and entities to censor another’s speech. The suit alleges agencies pushed the platforms to censor content about COVID safety measures and vaccines, elections, and Hunter Biden’s laptop, among other issues.

In a brief filed today with the Center for Democracy and Technology (CDT), EFF urged the court to rely on the First Amendment test in its 1963 Bantam Books v. Sullivan ruling to determine whether the government contacts were permissible or impermissible. The test says the Constitution bans not only direct government demands for censorship, but also indirect means, like hinting at legal sanctions to intimidate or coerce a private party into censorship.

In Bantam, book publishers sued a Rhode Island commission which—in an attempt to suppress “obscene” material—used threats of state prosecution to keep books considered “obj

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