By: Richard W. Painter*
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?
Consider, for example, an express or implied understanding that the executive branch will stand down from unfavorable regulation of a social media platform in exchange for the platform helping the president’s campaign for reelection or candidates of the president’s political party. In this context “soft pressure” on social media platforms can evolve into quid pro quo.
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. A deal allegedly was discussed that may have been agreed upon: the Trump Administration would not support regulation that disadvantaged Facebook in exchange for Facebook not fact-checking political statements posted by its users, including Trump and his campaign, before the 2020 election. This alleged deal may be linked to Facebook’s failure to censor Trump and his supporters up through January 6, 2021. This Article explains why criminal bribery statutes would be difficult to apply in a situation such as this even if such a quid pro quo probably would meet the broader definition of bribery contemplated in the impeachment clause of the Constitution.
President Trump, as a candidate for president, had a 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 quo between politicians and social media now is stronger than ever.
This Article also addresses legislative and regulatory solutions to this problem. One is amending federal bribery laws or other criminal statutes to prohibit certain types of quid pro quo understandings between federal officials and social media platforms. Another is strengthening the political independence of the Federal Communications Commission (FCC) and prohibiting federal officials outside the FCC, particularly presidents, and their political appointees, from seeking to influence content decisions of social media platforms—in effect outlawing by statute much of the Biden Administration’s conduct at issue in Murthy v. Missouri unless routed through the FCC or another independent agency. Yet another approach would be a statute giving state attorneys general standing to sue in federal court over federal interference with social media content moderation, so suits like Murthy v. Missouri could at least be decided on the merits. Finally, this Article observes that reducing industry concentration in social media would likely decrease the risk that quid pro quo corruption leads to de facto government control of the most often used media platforms in the United States of America.
* S. Walter Richey Professor of Corporate Law, University of Minnesota. Former Associate Counsel to the President and chief White House ethics lawyer 2005–07.