Publication
Penn State Law Review
Volume
129
Page
427
Year
2025
Abstract
The Supreme Court in Murthy v. Missouri in 2024 dismissed a suit by multiple plaintiffs alleging that the Biden Administration’s efforts to persuade social media platforms to monitor content violated the First Amendment. Although the Court did not directly decide the constitutionality of the government policy, the Court imposed a high bar for plaintiffs other than social media platforms to show standing to challenge the constitutionality of government pressure on the platforms.
But the coercion problem is not the only troubling aspect of this government policy. The question not presented to the Court was the corruption problem. What happens when powerful politicians pressure social media platforms to do what they want for their own political advantage and then suggest that government regulation of the platforms will be impacted by “voluntary” adherence to content moderation norms? Politicians could seek more moderation or less moderation of platform content depending on their political objectives. Is this a proper use of government power, and will more of it be encouraged by the Court’s decision in Murthy v. Missouri?
This Article addresses the heightened risk of quid pro quo relationships between public officials and social media platforms after the Murthy holding made it difficult for plaintiffs to sue the federal government for pressuring social media on content moderation. Government pressure on social media platforms exerted with corrupt intent presumably will be outside the reach of the courts when most affected platform users don’t have standing to sue.
This Article explains why bribery laws are insufficient to deal with this corruption problem. A case study is presented by an October 2019 meeting between Facebook CEO Mark Zuckerberg and President Donald Trump and his son-in-law Jared Kushner at the White House.
President Trump, as one next president, has close relationships with titans of the social media industry, including Elon Musk, owner of X. Trump also is the controlling shareholder of his own social media platform, Truth Social. The potential for quid pro quobetween politicians and social media now is stronger than ever.
This Article also addresses legislative and regulatory solutions to this problem.
Recommended Citation
129 Penn. State Law Review 427 (2025)
