Murthy, Surgeon Gen. v. Missouri (23-411)

argument 23-411

Murthy, Surgeon Gen. v. Missouri

Supreme Court of the United States 1h 42m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the Supreme Court hearing in Murthy v. Missouri?

John G. Roberts 0:00

We'll hear argument first this morning in Case 23-411, Murthy v. Missouri.

Unknown 0:04

Mr. Fletcher. Thank you, Mr. Chief Justice, and may it please the Court. The government may not use coercive threats to suppress speech, but it is entitled to speak for itself by informing, persuading, or criticizing private speakers. Like Bantam Books, this case should be about that fundamental distinction between persuasion and coercion. But unlike Bantam and the case that you'll hear next, this is not a typical suit where a speaker challenges government actions affecting its own speech. Instead, two states and five individuals are trying to use the Article III courts to audit all of the executive branch's communications with and about social media platforms. That problem has infected every step of this case.

Unknown 0:43

Respondents don't have standing at all because they have not shown an imminent threat that the government will cause a platform to moderate their posts in particular. But the lower court still reviewed a vast range of speech by different officials to different platforms about different topics at different times without asking whether it had anything to do with respondents. And the courts then entered a universal injunction restricting speech about any content posted on any platform by anyone and binding thousands of officials, including presidential advisors speaking to the public and FBI agents trying to protect the nation from foreign threats. Even apart from the Article III problem, that injunction rests on two fundamental legal errors.

Unknown 1:19

First, the Fifth Circuit radically expanded the state action doctrine by holding that even conceitedly non-coercive communications, like the CDC's public health advice, can transform private platforms' editorial choices into state action. And second, the Fifth Circuit mistook persuasion for coercion. It held that the FBI's communications are inherently coercive because the FBI is a law enforcement agency, a theory that even respondents don't defend in this court. And it held that White House officials engaged in coercion because they used strong language or referred in a general way to legal reforms in response to press questions. If this Court reaches the merits, it should reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.

Unknown 2:00

And because no threats happened here, the Court should reverse. I welcome the Court's questions.

Clarence Thomas 2:05

Mr. Fletcher, is the coercion encouragement framework of Brent Bantam booked the only way to look at this case?

Unknown 2:14

So I think there are two ways to look at this case. I think one of them is the coercion inquiry, which we think comes from Bantam books. You can think of that as an aspect of state action, because when private parties are compelled to act, as the Court said in Halleck, they become state actors. We think that's the right way to think about this case. Respondents in the lower courts have also proposed a different way, the state action way. They've suggested that even absent coercion, the government speech, if it encourages, in some colloquial sense, private action, it can turn that private action into

Clarence Thomas 2:40

state action. Do we — just to — so I understand your argument, do we normally apply state action doctrine in cases involving the government or private parties?

Unknown 2:52

Both, I think. You know, in some state action cases, you're asking — Someone is suing a private party and alleging that that private party is bound by the contours of the First Amendment or other constitutional provisions because they're state actors. You see some suits like that that look like this, suits against the platforms, suits against Stanford University, which is referenced in Tamika's brief here. But you also see suits against the government based on conduct by private parties. That was the case in Blum, and that's the theory that respondents are pursuing. Are

Clarence Thomas 3:20

there any First Amendment cases?

Unknown 3:22

Any First Amendment cases? I'm sorry.

Clarence Thomas 3:24

Using, employing state action doctrine.