The Lawfare Podcast — Lawfare Archive: The Supreme Court Rules in Murthy v. Missouri

Original Date: June 28, 2024
Archive Date: September 27, 2025
Host: Benjamin Wittes
Guests: Kate Klonick and Matt Perault
Topic: The Supreme Court’s Ruling on Jawboning and Government Influence on Online Speech in Murthy v. Missouri

Episode Overview

This episode features a deep dive into the Supreme Court’s decision in Murthy v. Missouri, a case addressing whether federal officials unlawfully pressured social media companies to suppress speech, especially around COVID-19 misinformation. Benjamin Wittes is joined by tech law experts Kate Klonick and Matt Perault to discuss the concept of “jawboning” (government pressure on private actors to suppress speech), the facts and legal issues in Murthy, and the continuing challenges of delineating government persuasion versus coercion. They analyze the divided opinions among the justices, the roots of recurring Internet speech cases, and possible avenues for better policy and legal clarity.

Key Discussion Points & Insights

1. Defining Jawboning and Its Real-world Impact

[03:11] Matt Perault explains jawboning as government pressure on private entities to moderate speech:

• Governments (U.S. and international) frequently urge tech companies to adjust their content moderation, sometimes daily.
• These discussions often happen behind closed doors, moving significant debates on speech away from public visibility.

Notable Quote:

"We were jawboned in some form... the influence is real, and I think it's problematic because it takes a bunch of conversations and debates about what speech should look like and puts them in the shadows."
— Matt Perault [03:39]

2. Case Background: Murthy v. Missouri

[05:12] Kate Klonick summarizes the procedural and factual background:

• Brought by individuals and state AGs (Missouri and Louisiana) against the Surgeon General and the Biden administration, alleging unconstitutional pressure on platforms to remove COVID-19 misinformation.

• Plaintiffs filed in a court where they were assured to get a Trump-appointed judge, foregrounding political motivations.

• Early evidence showed White House officials using strong, sometimes profane language in private communications with platforms.

• Critical legal issue: The government "asking" for content removal isn’t inherently unconstitutional—traceability (causation between government request and content removal) is essential.

  Notable Quote:

  "The government can ask. This is the entire dynamic between the government and private entities... What there wasn't in this case... was just no traceability."
  — Kate Klonick [06:52]

3. Supreme Court Decision: The 'Great Fizzle Out'

[06:30, 08:19]

• Justice Amy Coney Barrett wrote for a six-justice majority: plaintiffs lacked standing because the evidence failed to link government pressure directly to platform actions—no traceable injury.

• Justice Alito’s dissent (with Thomas and Gorsuch): argued a lower bar for standing and saw substantial evidence of government-sparked censorship.

  Notable Quote:

  “The decision from Amy Coney Barrett ... saying like, listen guys, there's no standing here... It was not clear that you had any kind of significant kind of censorship... no causation between the government making these calls... and the platforms listening.”
  — Kate Klonick [07:40]

  • Comparison to ‘Bantam Books’: Only clear threats causing suppression (as in overt police pressure) create constitutional problems.

4. Majority vs. Dissent: The Philosophical Divide

[09:28] Matt Perault:

• The fundamental disagreement: What factual record is needed to prove government-induced censorship?

• The majority insisted on a strong causal record; Alito stretched the evidence to find it persuasive.

• Both sides struggle with the complexity of internal tech company decisions and how to prove external influence.

  Notable Quote:

  “The nature of a case, in my view, makes it ill suited to really reconciling the issues at play here.”
  — Matt Perault [13:15]

5. Political Dynamics and Recurring ‘Fizzles’ in Internet Speech Litigation

[13:44] Kate Klonick:

• Jawboning is a principled constitutional issue, but recent cases have been politically driven, often filed for maximal partisan advantage.

• There's irony: Trump, not Biden, issued an executive order directly threatening tech companies over Section 230 in 2020.

• Many Internet speech cases at the Court lack strong facts, leading to repeated dismissals (“fizzles”).

  Notable Quote:

  “These are bad facts for legal clarity... You can't take a legal idea that needs clarity and then shove a bunch of bad facts at it and make good law.”
  — Kate Klonick [16:24]

6. What Would Sufficient Jawboning (with Standing) Look Like?

[19:42] Benjamin Wittes, Matt Perault, Kate Klonick:

• A case with standing would require a direct government threat from an official with clear punitive power and a documented causal chain—e.g., "Take this content down or face specific legal penalties."
• Vague threats (even from powerful officials) may not be enough; specificity and authority matter.
• Determining where to draw a line between legitimate advice and unconstitutional coercion is legally fuzzy and fact-intensive.

7. Drawing the Line: Coercion vs. Persuasion

[34:02–37:50] Discussion between all:

• The legal test (from Bantam Books) pivots on “coercion” vs. “persuasion,” but the distinction is narrow and not well defined.

• Genuine collaboration (e.g., FBI flagging terrorist content constructively) is not jawboning.

• Hostility or rudeness in communication doesn’t make a request coercive if there’s no threat.

  Notable Quote:

  "I don't know what the line is between those two terms… Coercion and persuasion in that sentence appear as synonyms."
  — Matt Perault [36:08]

8. Possible Solutions: Law, Executive Action, or Congressional Guidance?

[38:37] Matt Perault:

• Proposes an executive order providing guidance for government–platform communications, similar to ethics orders in other contexts.

[39:53] Kate Klonick:

• Skeptical of executive orders as a durable fix; prefers Congressional action for clarity and legitimacy.
• Urges patience, arguing the current cases may not warrant urgent executive action.

9. Policy Implications & Real-World Practice

[43:38] Matt Perault:

• Platforms are not only driven by profit—they balance mission and business interests, much like universities.

• The lack of standing doesn’t mean a lack of real-world concern; the risk is that government pressure pushes crucial speech debates out of public view.

• Government pressure, even below the threshold of being unconstitutional, can still lead to less-than-optimal speech outcomes.

  Notable Quote:

  “Governments are able to exert a lot of pressure... puts it in the shadows in ways that I think result in platforms making suboptimal decisions that don't benefit their users.”
  — Matt Perault [45:02]

Memorable Moments & Quotes

• On the recurring legal ‘fizzles’:
  "These records... it's hard to read the whole record and to make a good judgment of what the facts really are... And they've just picked some duds."
  — Kate Klonick [16:13]

• On hostility vs. true threats:
  "Whether it's constitutional or not cannot depend on whether the government actor is polite or obnoxious. There has to be some more objective standard than... hostility."
  — Benjamin Wittes [32:37]

Timestamps for Important Segments

• Definition and real-world impact of jawboning: [03:11–04:44]
• Case background and facts: [05:12–08:19]
• Supreme Court ruling explained: [08:19–11:13]
• Majority vs. dissent dynamic: [09:28–13:44]
• Political context and why cases fizzle: [13:44–18:37]
• What would make a valid jawboning claim?: [18:37–23:32]
• Coercion vs. persuasion — doctrinal confusion: [34:02–37:50]
• Potential policy fixes: [38:37–41:45]
• Platforms' motives and policy implications: [43:38–46:08]

Conclusion

The Supreme Court’s Murthy v. Missouri decision sidestepped setting new constitutional boundaries for government influence on speech online, dismissing the case for lack of standing. The episode’s lively panel underscores that jawboning remains a murky but significant issue: it’s widespread, hard to define, and invites disputes about facts, law, and policy. The legal community and policymakers still lack clear standards for distinguishing state persuasion from unconstitutional coercion, and the court appears to be waiting for a case with a more direct causal link and stronger factual record.

Participants’ Closing Thoughts:

• Matt Perault: Highlights the real risks from government pressure, even if not strictly unconstitutional, pushing speech decisions into the shadows.
• Kate Klonick: Calls for Congressional debate and outlines the limits of current litigation and executive action.

Summary prepared for listeners of The Lawfare Podcast
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