The Supreme Court will hear arguments on Monday in a case that challenges the federal government’s ability to communicate with social media companies and news platforms for the purpose of tamping down on misinformation and disinformation. It could be a landmark decision with respect to big tech and the First Amendment. 

The case, Murthy v. Missouri was originally known as Missouri v. Biden. In 2022, Missouri and Louisiana sued the Biden administration alleging that bureaucrats from the FBI and Centers for Disease Control coordinated — at the White House’s urging — to contact social media firms to ask that certain posts be taken down or buried. 

The lawsuit was filed by the then-attorneys general of Missouri and Louisiana, Eric Schmitt and Jeff Landry respectively. Mr. Schmitt now serves in the Senate and Mr. Landry is his state’s governor.

One of the stars of the Missouri case is FBI special agent Elvis Chan, who acted as a kind of middleman between the White House, federal agencies, and big tech platforms. Mr. Chan is an agent in a FBI California field office. 

The House Judiciary Committee — specifically a “weaponization” subcommittee seeking to expose what it says was censorship of Americans during the Covid-19 pandemic and the 2020 elections — has issued a lawsuit against Mr. Chan after he failed to appear for testimony. They write that he is “a pivotal figure in its investigation” of censorship. 

“Publicly available information indicated, and information uncovered during the Committee’s investigation to date has confirmed, that Chan was at the heart of the FBI’s interactions with technology companies, including Facebook and Twitter,” the committee said.

In 2023, Judge Terry Doughty of the Western District of Louisiana issued a preliminary injunction against the government, ordering that they not contact big tech firms such as Facebook, Twitter, and others. The government was ordered not to contact them for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech,” Judge Doughty wrote in his initial order.

Judge Doughty’s order said the administration “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”

A panel of judges on the Fifth Circuit Court of Appeals later upheld Judge Doughty’s initial injunction, writing that the government clearly “coerced or significantly encouraged social media platforms to moderate content.” The judges ruled that the government had suppressed information about masking, vaccines, the legitimacy of the 2020 election, and other issues.  

The Surgeon General of the United States, Vivek Murthy, is now the petitioner in the case and is asking that the justices overrule the lower court decisions holding that the Biden administration violated citizens’ First Amendment rights. 

The government argues that those who sued the Biden administration lack standing to bring the case in the first place. It was the social media platforms like Facebook and Twitter — now known as X — that made independent decisions to moderate vaccine and Covid “misinformation,” the government argues. 

The social media “platforms have strong independent business incentives to moderate content … the platforms actually did moderate respondents’ Covid-19-related content starting in 2020, long before the bulk of the government actions challenged here,” the government writes in a recent legal brief to the justices. 

The government will also argue that the Biden administration and other agencies did not violate the First Amendment because there was no threat issued to social media firms if they failed to comply. 

“No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social media platforms into moderating content,” the government argues. The plaintiffs have not “pointed to any evidence that the government took any adverse action against any platform for failing to moderate content flagged by the government.”

The Missouri case has been a boon for free speech advocates and Republicans accusing the Biden administration of overreaching with bureaucratic carrots and sticks. In July, shortly after Judge Doughty issued his decision in the case, the House Select Subcommittee on the Weaponization of the Federal Government held a hearing to defend the First Amendment and ask questions about the “Twitter Files” that detailed the cooperation between government actors and the technology companies.

The author of that Twitter Files series was journalist Matt Taibbi, who disclosed the existence of Mr. Chan’s e-mails with big tech companies and the White House. In one e-mail uncovered by Mr. Taibbi, Mr. Chan reminded Twitter’s then-head of trust and safety, Yoel Roth, that they had “our quarterly call next week.”

Alongside Mr. Taibbi at that hearing sat Emma Jo Morris, a journalist with Breitbart and one of the authors of the New York Post’s Hunter Biden laptop story, which was suppressed by social media companies in the days before the 2020 election. 

Ms. Morris decried the “unholy alliance between the intelligence community, social media platforms, and legacy media outlets” that allowed for the laptop story to be suppressed in the first place. The chief executive officers of Twitter and Facebook at the time, Jack Dorsey and Mark Zuckerberg, have both said that they were contacted by government officials who said the laptop story was part of a Russian disinformation operation.