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In itsMurthy v. Missouri ruling last week, the Supreme Courtstopped short of deciding whether pressure on social media platforms by federal officials to censor speakers violates the First Amendment. So now Congress must take action to protect free speech online from government interference.

And weve got a ready-made response: FIREs model legislation, the Social Media Administrative Reporting Transparency Act, orSMART Act, would require the government to disclose its communications with social media companies about moderating content.

The Supreme Court sidestepped deciding whether government pressure on social media platforms violates the First Amendment.

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As FIRE Chief Counsel Bob Corn-Reveresaid on the day of theMurthy decision, A little bit of sunlight would go a long way toward ending the censorship by coercion at issue in the case. With the right transparency requirements in place, the American people would be able to identify occasions in which federal officials contact social media and gain more insight into whether it led to censorship of their speech. Thats why FIREreleased a report featuring our model legislation that would provide much-needed sunshine when it comes to government jawboning.

The SMART Act would require the government to discloseanycommunication in which a federal agency employee contacts a social media company regarding content published on its platform (with limited exceptions aligned with certain Freedom of Information Act exceptions). It casts a wide net in order to capture the full universe of communications that may involve coercive or intermeddling government demands or requests through direct methods like text and email, but also through the use of third parties to convey the message to a platform.

InMurthy, five social media users and two states sued the government, alleging that federal officials had in recent years pressured, strong-armed, and intimidated social media platforms into censoring disfavored speech and speakers. While the federal district courtpreliminarily enjoined the federal officials practices, and the Fifth Circuitaffirmed (but narrowed the injunction), the Supreme Court did not address whether the officials actions violated the First Amendment. Instead, it held the plaintiffs did not have standing, meaning they had not established their right to ask a court to prohibit future censorship.

With the right transparency requirements in place, the American people would be able to identify occasions in which federal officials contact social media and gain more insight into whether it led to censorship of their speech.

The Court held that in order to establish standing, plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. In other words, in order to protect themselves in the future from this form of indirect censorship known as jawboning the plaintiffs would have to show the meetings, the emails, or the words involving government officials not only happened, but likely resulted in the social media company taking actions against the speech or the particular user that they would not otherwise have taken.

This ruling raises significant concerns insofar as the Court set a high bar for individuals who believe they were silenced by government jawboning of social media platforms to get a foot in the courthouse door.For example, Jill Hines, a health activist and a plaintiff inMurthy, questioned health guidance regarding COVID-19 in posts on Facebook and was subject to Facebooks content moderation policies at the same time that the company was facing government pressure to combat COVID-19 misinformation. While Hines made the best showing of a connection between her social-media restrictions and communications between the social media company and the government, the Court said the connection was tenuous and that she must show that Facebook's restrictions were likely traceable to the governments pressure. (Emphasis in original.)

Thats a steep hill to climb when the pressure government officials exert is often performed secretly or behind closed doors, and may never see the light of day. Indeed, we only know about the most recent cases of jawboning, which occurred across two presidential administrations, because of internalleaks at social media companies and Elon Muskpublicizing government censorship requests.

With a fewnarrowly defined exceptions, the First Amendment prohibits government officials from censoring the speech of private actors. This core First Amendment principle remains unchanged. While the Supreme Court dodged the question of whether government pressure on social media platforms violated the First Amendment, itreaffirmed last month that the government cannot censor speech by indirect coercion any more than it can by public legislation inNRA v. Vullo.

For free speech and open discourse to flourish online, the American people need to know when government officials exert influence over what or who social media platforms allow on their platforms. FIRE urges Congress to act in favor of government accountability and free and open discourse by taking up our model legislation.

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Government transparency is critical when it comes to fighting censorship - Foundation for Individual Rights and Expression