Murthry, Surgeon General, et al. v. Missouri, et al., No. 23A243.

This case presents a sweeping challenge by private citizens and state governments to federal officials’ alleged interference with social media platforms policy and moderation decisions during the Covid-19 pandemic.

The U.S. District Court for the Western District of Louisiana, having perceived some federal activity likely to violate the First Amendment enjoined federal officials from interference with social media platforms on July 4, 2023.

On appeal, federal officials were not pleased with the Fifth Circuit’s review, which clarified but affirmed significant aspects of the trial court’s determination.  Federal officials  sought immediate relief from the U.S. Supreme Court.

Government officials were further displeased with the results of the Fifth Circuit’s further review, which added back into the injunction another defendant, the Cybersecurity and Infrastructure Security Agency.  The Fifth Circuit found that CISA pressured the platforms into adopting CISA’s proposed practices for addressing mis, dis, and malinformation.

On October 3rd, the Fifth Circuit revised its opinion and entered a ten day stay, which would expire of its own accord today.  Justice Alito has today stayed the July 4th Order until next Friday, October 20th.

What will happen on the 20th is beyond justlawful’s powers of prognostication.  If there were a preference, which there is not, in light of the recent grants of certiorari in cases concerning First Amendment issues in state intervention on social media platforms’ moderation practices, justlawful would want certiorari to be granted in this case.

Granting certiorari now would dispense with further rounds solely respecting injunctive relief and permit the Supreme Court to locate in this term a comprehensive review of First Amendment issues as they may arise between governments, social media platforms, and content providers.

An incrementalist court might not be inclined toward a global view of such significant questions.  Yet with so many questions being raised about speech suppression and moderation — including a recent European Union directive to X — such clarity and certainty as may be had could be of assistance to all of the parties in planning their affairs.

Miscellaneous Order (10_13_2023)

Recent filings with the Supreme Court

23A243 Murthy v. Missouri Government’s Third Supplemental Memorandum

Murthy v. Missouri – Response to Government’s Third Supplemental Brief