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Commentary By Ilya Shapiro

MI Responds: Ilya Shapiro on SCOTUS Oral Arguments in Murthy v. Missouri

Governance Supreme Court

New York, NY — Today, the Supreme Court heard oral arguments session in the case Murthy v. Missouri, in which the plaintiffs accuse the government of coercing and otherwise pressuring social media companies to take down constitutionally protected speech. The Manhattan Institute's director of constitutional studies, Ilya Shapiro, attended the session and offers the following analysis:

"Although the trial judge called it 'the most massive attack against free speech in United States history,' there doesn’t seem to be a Supreme Court majority ready to rule against the government’s collusion with tech companies to suppress social-media posts and accounts. Most of the justices seemed to be hung up on how the government’s encouragement and exhortation constitutes 'coercion,' even though the central feature of the case is that it shows how tech companies act as government agents without the need for a metaphorical gun to the head. There’s uncontroverted evidence that government officials asked that platforms refrain from publishing disfavored speech or limit its spread—and company executives repeatedly conveyed the scope of their deletions and shadow bans to confirm that they’d gone far enough to restrict the speech that the government didn’t like. That should be enough to affirm the injunction against such action here; the willingness of Big Tech to cooperate with the government’s policy wishes doesn’t lessen the First Amendment injury. This case cries out for a digital-age update of the state-action doctrine, but it doesn’t look like the Supreme Court is going to do that yet."

Ilya Shapiro is director of constitutional studies and senior fellow at the Manhattan Institute. He, alongside MI legal fellow Tim Rosenberger, filed an amicus brief in this case.

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