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Brandeis University Law Journal 2023-2024, Volume 11

Covid and the Court: Why the Supreme Court Should Not

Diffuse European Speech Restrictions into American Law

Brandon King205

Speech constitutes an immense power which, at its best, can
lead to open dialogue that creates the opportunity to achieve
positive political and social change. At its worst, the freedom
to speak can precipitate hate speech and violence. Across the
world, the standards governing free speech are not necessarily
the same. This article aims to analyze the constructs of free
speech in both Europe and the United States. To this end, this
article concerns two major questions: should the United States
adopt legislation to combat hate speech in line with the Digital
Services Act which the European Union previously enacted;
and should this be enacted via the Supreme Court’s opinion in
Murthy v. Missouri, a case analyzing possible infringement of
Free Speech by the federal government on social media sites.
This article discusses the nature of how and which
comparative law principles and jurisprudence should be
diffused into judicial opinions written by U.S. judges. As well
as why this issue is not one that should be handled by the
courts, especially through the diffusion of European authored
regulations on speech.

In February 2020, COVID-19 emerged as the worst
pandemic in almost a century.206 Hospitals were overwhelmed,
store shelves were emptied, masks were mandated, and the

206 Please note,Murthy v. Missouri is an ongoing case currently pending a
decision in the United States Supreme Court. Any perspectives or
interpretations provided in this article have been completed as of April 2024
and may be subject to alteration pending the court's decision.

205 Brandeis University Undergraduate, Class of 2026.

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global economy came to an abrupt halt.207 Globally, to pursue
prudent public health measures at the time, masks were worn,
social distancing mandates were enacted, and individuals were
forced to make hard decisions. Decisions such as attending
funerals of loved ones over Zoom and kids attending classes
online rather than in person, all in an effort to stop the spread.
Across the world, many individuals followed protocols aimed
at preventing the virus’ spread, while others, contrary to the
advice of the United States Center for Disease Control at the
time, did not.208 Subsequently as time went on, the unity of the
nation exhibited at the start of the pandemic transitioned into
polarized partisanship, with staunch opposition to policies
such as mask and vaccination mandates.209 Nowhere was this
opposition to COVID-19 policies more evident than on social
media.

Over time, governments across the world, particularly
the United States government, came to understand the risks
associated with social media during a pandemic.210 In response
to misinformation regarding COVID-19 which circulated
across social media and the negative impacts of this
misinformation on the nation; the Biden Administration
initiated communications through both electronic and physical

210 Hichang Cho et al., The Bright and Dark Sides of Social Media Use
during COVID-19 Lockdown: Contrasting Social Media Effects through
Social Liability vs. Social Support, 146 Comput. Hum. Behav. 107795
(2023).

209 Lu He et al., Why Do People Oppose Mask Wearing? A Comprehensive
Analysis of U.S. Tweets during the COVID-19 Pandemic, 28 J. Am. Med.
Inform. Assoc. JAMIA 1564 (2021).

208 Judy Stone, Public Pushes Back On CDC’s Plan To Weaken Infection
Control, Forbes,
https://www.forbes.com/sites/judystone/2023/08/25/public-pushes-back-on-
cdcs-plan-to-weaken-infection-control/ (last visited Jan 9, 2024).

207 Kate Li, Mona Al-Amin & Michael D. Rosko, Early Financial Impact of
the COVID-19 Pandemic on U.S. Hospitals, 68 J.Healthc.Manag. 268
(2023).

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means with social media companies such as Facebook, X
(formerly known as Twitter), and Google via the White House,
Office of the Surgeon General, and Department of Justice.211
Through these communications, the Biden Administration
urged social media companies, often by threat of future
government scrutiny and antitrust prosecution, to take down
and/or “shadow ban” certain posts and accounts.212 The Biden
Administration’s goal as shown by the majority opinion issued
in the United States’ Fifth Court of Appeals in the case of
Missouri v. Biden, the prior name for Murthy v. Missouri
currently pending in front of the United States Supreme Court,
was to limit the dissemination of COVID-19 misinformation
via platforms’ internal algorithms, as well as to limit the reach
of the accounts of influential individuals who were deemed by
the Administration to be spreading COVID-19
misinformation.213

As a result of these requests, many social media
companies began a widespread crackdown on misinformation,
often utilizing data provided to them by executive agencies.214
In response to this crackdown, a group of plaintiffs, including
the State of Missouri, sued the Biden Administration in federal
court, alleging that the administration coerced social media
platforms into censoring certain social media content. Plaintiffs
alleged that these actions amounted to the state suppression of
speech and at times “prior restraint,” violating the First
Amendment’s freedom of speech clause.215 In response, the
United States Court of Appeals for the Fifth Circuit issued a
ruling in favor of the plaintiffs, stating that the Biden

215 Id.
214 Id.
213 Id.
212 Id.

211 Biden v. Missouri, 595 U.S. (2022),
https://supreme.justia.com/cases/federal/us/595/21a240/ (last visited Dec 5,
2023).

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Administration, both directly and through executive agencies,
“coerced and significantly encouraged the platforms to
moderate content … unlawfully violating the plaintiffs (First
Amendment) rights.”216

COVID-19 misinformation was not just a domestic
issue, but a global one, affecting nearly every country in the
world, including those within the European Union (EU). In
response to the rise in misinformation through social media
channels, the EU Parliament on July 5, 2022 enacted the
Digital Services Act (DSA). The legislation set January 1,
2024 as the date on which affected companies had to begin
complying with the legislation.217 In this enactment, the EU set
forth a comprehensive list of regulatory procedures to control
the spread of misinformation, hate speech, terrorist
propaganda, as well as specific provisions relating to the
suppression of content during times of emergency. The
legislation also established penalties for companies not in
compliance, including a fine of up to six percent of a
company’s global revenues, and the barring of the company
from operating in EU countries for a period determined by an
independent commision.218

Through the case of Murthy v. Missouri, the Supreme
Court has the opportunity to incorporate aspects of
comparative law, by adopting ideals of other nations' laws into
the laws of the United States, as the Court has done in the past

218 Sweeping EU digital misinformation law takes effect, Legal Dive,
https://www.legaldive.com/news/digital-services-act-dsa-eu-misinformation
-law-propaganda-compliance-facebook-gdpr/691657/ (last visited Dec 21,
2023).

217 The Digital Services Act package | Shaping Europe’s digital future,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package
(last visited Dec 21, 2023).

216 Id.

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with cases such as Roper v. Simmons.219 Though uncommon,
the practice of adopting the ideals of other nations' laws into
the laws of the United States is not unprecedented for the US
Supreme Court; in fact, the landmark decision in Roper v.
Simmons referred to international sources of law, including
The United Nations Convention on the Rights of the Child, in
order to articulate how the Eighth Amendment’s cruel and
unusual punishments clause bars the sentencing to death of a
minor found guilty of a capital offense.220

In his opinion in Roper v. Simmons, Justice Kennedy
not only utilized the laws of Western European nations that bar
the execution of minors, but he also compared the United
States to nations deemed “international pariahs'' in the 1990s,
including Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the
Democratic Republic of Congo, and China.221 As shown by this
example, it is not unprecedented for the United States Supreme
Court's jurisprudence to reference the laws and doctrines of
other nations. Utilizing this precedent, this paper will analyze
three major questions regarding the implementation of other
nations’ laws in the legal system of the United States.222

1) Under what circumstances should the Supreme Court
or lower courts utilize laws and or cases from other nations in

their deliberation of cases?

2) In the case of Murthy v. Missouri, should the Supreme
Court incorporate the ideals or principles of the EU’s DSA in

its jurisprudence of this case?

222 John Marshall,Murray v. The Charming Betsey, 6 U.S. 64 (1804), Justia
Law, https://supreme.justia.com/cases/federal/us/6/64/ (last visited Mar 30,
2024).

221 Id.
220 Id.

219 Roper v. Simmons, 543 U.S. 551 (2005),
https://supreme.justia.com/cases/federal/us/543/551/ (last visited Dec 21,
2023).

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3) What is a potential counter argument to this type of
Jurisprudence?

I. Circumstances in which United States’ Courts
should Utilize the Laws and Cases of Other Nations

“Courts were designed to be an intermediate body
between the people and the legislature, in order, among other
things, to keep the latter within the limits assigned to their
authority.”223 In the United States, courts impose checks on the
elected bodies of government in accordance with their
interpretation of the Constitution. While the Supreme Court
was created by Article 3 Section 1 of the Constitution, its role
in government was not fully realized until the landmark
opinion of Marbury v. Madison.224 In this opinion, Chief
Justice Marshall lays out the judiciary’s role to review the
constitutionality of acts from other branches of government
through judicial review.225 While the courts may have the
power to determine the constitutionality of legislative acts,
they cannot act in a legislative capacity. This inability is the
primary argument against the usage of foreign laws and cases
in the deliberation of cases in American courts.226

In a democratic system, laws are passed by the
people's representatives based on the interests and goals of

226 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.

225 John Marshall, Marbury v. Madison, 5 U.S. 137 (1803),
https://supreme.justia.com/cases/federal/us/5/137/ (last visited Dec 21,
2023).

224 The Constitution of the United States: A Transcription, National
Archives (2015),
https://www.archives.gov/founding-docs/constitution-transcript (last visited
Dec 5, 2023).

223 The Avalon Project : Federalist No 78,
https://avalon.law.yale.edu/18th_century/fed78.asp (last visited Dec 21,
2023).

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those affected by the enacted laws.227 Therefore, it is argued
that courts should not base their decisions on the laws and
cases of other nations. Looking at the current case at hand,
the decision in Murthy v. Missouri has no bearing upon the
citizens of EU countries, the organization which enacted the
DSA; furthermore, the representatives of the American
people were not party to the passage of the DSA, and
therefore legislative actions enacted by the EU should have
no bearing on American courts.

In the case of Roper v. Simmons, Justice Kennedy
presents a comprehensive argument for the barring of the
death penalty for minors. The opinion applies previous case
law, conducts an analysis of states that barred the practice,
and examines the psychological and biological differences
between minors and adults.228 These arguments alone would
have sufficiently demonstrated that the imposition of the
death penalty on minors violated the Eighth and Fourteenth
Amendments.229 However, Justice Kennedy goes further in
his opinion, bringing in the laws and practices of other
nations to determine if a punishment is cruel or unusual. By
mentioning the laws and practices of other nations to justify
his opinion, Justice Kennedy grossly misstepped his
authority and weakens the strength of his argument.230

In his opinion, Justice Kennedy references Article 37
of the United Nations Convention on the Rights of the Child,
which prohibits capital punishment for crimes committed by
individuals under the age of eighteen.231 Justice Kennedy

231 General Assembly resolution 44/25, Convention on the Rights of the
Child, OHCHR (1989),

230 Id.
229 Id.
228 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.

227 Overview - Rule of Law | United States Courts,
https://www.uscourts.gov/educational-resources/educational-activities/overv
iew-rule-law (last visited Dec 21, 2023).

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specifically mentions how every nation has ratified the treaty,
with the exception of the United States and Somalia.232 He
uses this fact to further his point that most of the world has
outlawed capital punishment for juveniles, and thus, the cruel
and unusual punishment clause of the Eighth Amendment
should apply in this case.233 This rationale is a blatant overstep
of separation of powers; and should not have been used in the
opinion. The United States Constitution is clear about the
procedure of ratifying treaties, as Article 2 Section 2 of the
Constitution states that the president “shall have Power, by
and with the Advice and Consent of the Senate, to make
Treaties, provided two-thirds of the Senators present
concur.”234 The judicial branch of government is not
mentioned in this section of the Constitution and plays no role
in negotiating and ratifying treaties, therefore should not
incorporate laws or beliefs set forth by international treaties in
which the United States is not a signatory nation.

Furthermore, Justice Kennedy reads into the rest of the
world banning capital punishment for minors (with the
exception of the United States and Somalia) as a clear
example of times changing, and the world now viewing
capital punishment for minors as a cruel and unusual
punishment, thus he argued that the United States should
follow suit.235 On the contrary, the fact that the United States
Senate did not ratify this treaty, speaks louder than the treaty’s
ratification by a large majority of the world. By referencing
the actions of other legislatures in ratifying this treaty as a
motive for baring the practice of imposing capital punishment
against juveniles, Justice Kennedy places greater value on the

235 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.
234 The Constitution of the United States, supra note 224.
233 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.
232 Id.

https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-
rights-child (last visited Jan 9, 2024).

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will of other nations’ legislatures, values, and people over that
of the American Congress, the American Constitution, and
most importantly, the American People. Congress did not
ratify Article 37 of the United Nations Convention on the
Rights of the Child, and this failure to ratify is the best proof
that the American people as a whole were not in favor of
departing from the imposition of capital punishment for
juveniles on the federal level. Given the evolving standards of
the Eighth Amendment and his belief on the will and actions
of other nations rather than his own, Justice Kennedy decided
to override this implicit articulation by Congress.236

In general, courts should avoid applying the laws and
cases of other nations in their jurisprudence of cases, with one
exception. Since the act of creating law is vested in the
legislature, lawmakers have immense freedom to craft laws
given constituent needs, as long as such laws are in line with
the Constitution. Given this freedom, legislatures are free to
derive ideas from various sources, one such source can be
other nations.237 A congressperson is free to look at the laws
and policies of other nations and decide if it could benefit the
United States. That legislator must then go through the
process of proposing a bill which diffuses the laws and
policies of another nation. The bill must then be passed by the
House of Representatives and the Senate, and subsequently
signed by the President.238

If a legal case arises before a court regarding the
meaning of this new law which was passed incorporating the

238 The Legislative Branch, The White House,
https://www.whitehouse.gov/about-the-white-house/our-government/the-leg
islative-branch/ (last visited Apr 3, 2024).

237 Toni Johnson, Congress and U.S. Foreign Policy, Council on Foreign
Relations,
https://www.cfr.org/backgrounder/congress-and-us-foreign-policy (last
visited Jan 9, 2024).

236 Id.

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laws and policies of another nation.A court who decides to
utilize legislative intent as a means to decide what the true
intention of the law is could examine the diffused law or
policy from the country of origin which served as inspiration
for the act of Congress. While the courts should be free to
look at the laws and policies of other nations in order to
establish legislative intent, the court should only take the
lessons learned from the other countries' laws and policies in
an advisory capacity. If there are better means of finding
legislative intent, those means should take priority over the
other countries’ cases and enactments.

II. Should the Supreme Court Incorporate the Ideals
or Principles of the DSA in their decision on
Murthy v. Missouri?

Applying the principles articulated in the prior
question, the Supreme Court should not incorporate the ideals
or principles of the EU’s DSA in their decision of Murthy v.
Missouri. Courts in the United States, as referenced in question
I, should not apply the laws and doctrines of other nations in
their jurisprudence of cases in the US.239 In fact, applying
foreign law to this case necessitates condemnation in even
stronger terms than did Justice Kennedy’s use of international
examples as applied in Roper v. Simmons.240 In the case of
Roper v. Simmons, one could argue for an international
consensus, excluding the United States and Somalia, in regards
to the imposition of capital punishment against minors.241 It
cannot be argued that the same international consensus exists
in regards to deciding the appropriate regulations to curb
misinformation in the age of social media, as this issue is very

241 General Assembly resolution 44/25, supra note 231.
240 Roper v. Simmons, 543 U.S. 551 (2005), supra note 219.

239 Cornell Law School, Jurisprudence, LII / Legal Information Institute,
https://www.law.cornell.edu/wex/jurisprudence (last visited Jan 9, 2024).

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new and there has been far less time for consensus to emerge
than there was in the case of capital punishment for juveniles.
While as argued prior, such consensus should not impact the
jurisprudence of American courts, this lack of consensus
serves to differentiate between the cases of Roper v. Simmons
and Murthy v. Missouri. Some, such as Justice Kennedy, have
made the argument that comparative principles must be
diffused into the United States jurisprudence in regards to
Roper v. Simmons. This same argument cannot be made for
Murthy v. Missouri, given the lack of an international
consensus on the issue, as the international consensus which
existed in regards to capital punishment for minors, which was
a core aspect of Justice Kennedy’s opinion, does not exist in
regards to the American interpretation of governmental
intrusion on free speech.

The First Amendment of the United States
Constitution—and subsequent interpretations by the
courts—have endowed the US with some of the strongest
protections for the freedoms of speech and expression in the
world.242 With particular reference to Europe, almost every
country within the EU can be described as a western
democracy with certain protections for free speech.243
However, many members of the EU have freedom of speech
laws which are not nearly as strong or go as far as those in the
United States. For example, in Germany, an EU member state,
Section 130 of the German Criminal Code bans “incitement to
hatred and insults that assault human dignity against people
based on their racial, national, religious or ethnic

243 Id.

242 Alex Gray, Freedom of Speech: Which Country Has the Most?, World
Economic Forum (2016),
https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-com
parison/ (last visited Jan 9, 2024).

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background.”244 This law has been used to prosecute
individuals who publicly deny the Holocaust, as well as those
who distribute Nazi propaganda both on and offline.245

Laws like this undoubtedly would be deemed
unconstitutional in the United States, as freedom of speech is a
fundamental concept strictly enforced by the Supreme
Court.246 Given that the restrictions imposed by the DSA
would constitute a content based restriction, a restriction on
speech imposed by the government that regulates speech on
the basis of the content that the speech entails.247 The doctrine
of strict scrutiny applies in which the government is required
to demonstrate a compelling state interest, as well as a
narrowly tailored least restrictive approach, to any legal
limitations imposed in the form of content based restrictions.248

One of the most famous cases in regards to content
based restriction on speech is the case of Cohen v.
California.249 In this case, Paul Robert Cohen entered the
corridor of a court room wearing a jacket which stated “Fuck
the Draft”, in reference to the Draft associated with the

249 Cohen v. California, Oyez, https://www.oyez.org/cases/1970/299 (last
visited Apr 1, 2024).

248 Strict scrutiny, supra note 246.

247 Content Based Regulation, LII / Legal Information Institute,
https://www.law.cornell.edu/constitution-conan/amendment-1/content-based
-regulation (last visited Mar 30, 2024).

246 Strict scrutiny, LII / Legal Information Institute,
https://www.law.cornell.edu/wex/strict_scrutiny (last visited Mar 30, 2024).

245 Germany: Constitutional Court Upholds Free Speech Restriction in
Banning Public Support of Former Nazi Regime, Library of Congress,
Washington, D.C. 20540 USA,
https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constit
utional-court-upholds-free-speech-restriction-in-banning-public-support-of-
former-nazi-regime/ (last visited Apr 3, 2024).

244 Dan Glaun, Germany’s Laws on Antisemitic Hate Speech and Holocaust
Denial,
https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-
speech-nazi-propaganda-holocaust-denial/ (last visited Jan 9, 2024).

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Vietnam War ongoing at the time.250 He was subsequently
arrested for violating section 415 of the California Penal Code
which criminalizes “maliciously and willfully disturbing the
peace or quiet of any neighborhood or person … by …
offensive conduct.”251 When this case was ruled on by the
Supreme Court of the United States, Justice John Harlan wrote
one of the most famous majority opinions in the courts history
stating, “while the particular four-letter word being litigated
here is perhaps more distasteful than most others of its genre,
it is nevertheless often true that one man’s vulgarity is
another’s lyric. … The Constitution leaves matters of taste and
style so largely to the individual.”252 As demonstrated by the
strong opinion written by Justice Harlan, California had no
good reason to enforce this statute, given that the statement on
Paul Cohen’s jacket was speech, California did not have a
compelling state interest that was threatened by his use of
explicit terminology.253 This case is demonstrative of the many
differences in the legal interpretations of free speech in the
United States versus Europe. Given this difference in the levels
of speech protections, it is clear that fundamental cultural,
constitutional, and legal differences exist between the US and
EU countries. These divisions would make any attempted
implementation of the DSA, within the opinion of Murthy v.
Missouri, to go against the court's established precedent on this
issue. This is due to the First Amendment concerns that would
make any implementation of the DSA not only controversial,
but also raise additional constitutional questions, given the

253 Strict scrutiny, supra note 246.
252 Cohen v. California, supra note 249.

251 Cohen v. California, Global Freedom of Expression,
https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/
(last visited Apr 3, 2024).

250 Vietnam Lotteries, Selective Service System,
https://www.sss.gov/history-and-records/vietnam-lotteries/ (last visited Apr
3, 2024).

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high level of scrutiny the Supreme Court takes regarding
regulations of speech, especially ones that are content based.

Third, the issue of misinformation being spread via
social media, and particularly the power of large tech
companies in the United States, is a topic that is discussed
often in Congress.254 Many hearings have taken place between
members of Congress and the Chief Executive Officers’ of
major tech companies. Many Members of Congress have also
advocated in favor of many ideas to curb the power of Big
Tech, including the targeting of misinformation to vulnerable
users.255 If the Supreme Court were to rule in the case of
Murthy v. Missouri based on the principles of the DSA, they
would severely limit the ability for members of Congress to
impose regulations on Big Tech. This would be due to the
court implementing the principles of the European DSA in a
manner that would likely interfere with the ability of American
legislators to pass legislation which best serves the American
public.

III. Counter Argument to this Method of
Jurisprudence?

While freedom of speech is one of the most
fundamental rights in the United States, many point to the rise
of hate online hate speech and misinformation such as foreign
adversaries attempts to influence the American electorate
through digital means, as a rationale for why the United States
government should implement a European-style approach to

255 House approves antitrust bill targeting Big Tech dominance | AP News,
https://apnews.com/article/2022-midterm-elections-technology-business-lob
bying-congress-6e49cfc65668b99c633647898d114a8b (last visited Jan 9,
2024).

254 A. B. C. News, Congress Grills Tech CEOs in Wide-Ranging Hearing on
Monopoly, Political Bias, China and More, ABC News,
https://abcnews.go.com/Technology/ceos-amazon-apple-facebook-google-fa
ce-congressional-antitrust/story?id=72034939 (last visited Jan 9, 2024).

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combating misinformation online.256 Furthermore, concerned
citizens may conclude that if the legislative and executive
branches of government cannot figure out how to combat
these issues, the Supreme Court ought to do it unilaterally.
The government has a duty to target misinformation online;
the country does not benefit from external actors posting
misinformation during elections and times of national
emergencies.257 This is a major issue that requires major
government action in order to promote the public good.
However, the public good must be weighed against
individuals’ civil liberties in regards to the First Amendment.
This issue must be treated appropriately under our current
system of government, in accordance with current precedent
concerning government regulations regarding speech. The
fact that Congress has not acted in a major way regarding the
rise in misinformation online, is indicative of the fact that no
general consensus has formed in regards to the best way to
target the problems associated with misinformation.258

It is not the role of the judicial system to impose upon
the American people a solution to a problem of which other
branches of government have not solved yet. This would be
vastly in contradiction with the democratic process. Instead,

258 Gabriel Sanchez & Keesha Middlemass,Misinformation Is Eroding the
Public’s Confidence in Democracy, Brookings,
https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-c
onfidence-in-democracy/ (last visited Mar 30, 2024).

257 OECD, Transparency, Communication and Trust: The Role of Public
Communication in Responding to the Wave of Disinformation about the
New Coronavirus, OECD,
https://www.oecd.org/coronavirus/policy-responses/transparency-communic
ation-and-trust-the-role-of-public-communication-in-responding-to-the-wav
e-of-disinformation-about-the-new-coronavirus-bef7ad6e/ (last visited Mar
30, 2024).

256 Russian Interference In 2016 U.S. Elections, Federal Bureau of
Investigation,
https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-election
s (last visited Mar 30, 2024).

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Congress must be the one that passes a bill into law which
addresses the issues of misinformation online, which the
President must then sign. If Congress chooses to implement a
European-styled DSA approach to that legislation, that is
entirely permissible, as Congress is free to derive ideas from a
variety of sources, including other nations. Additionally, the
issue regarding misinformation on social media, especially
during elections and public health emergencies, is a complex
political issue. In times of emergency, Congress and the
Executive Branch, which unlike the federal courts is directly
answerable to the American people, must take the lead over
the judicial branch of government in solving this complex
issue.

The role of Congress is to identify problems, research
the best ways to solve the problems, and build a consensus
strong enough to allow the passage of a bill to deal with the
problems.259 This process is purely political and must take into
account the views of citizens throughout the nation through
their representatives in order to build a consensus and step
forward. In contrast, the Supreme Court's role is to review
laws and balance them with constitutional principles in order
to make sure that the law does not conflict with the civil
liberties and rights afforded to the American people by the
Constitution.260 The Supreme Court’s role is not to engage in
the political process, and therefore, the court should not apply
the laws and doctrines of other nations, in what would
effectively be a legislative capacity, by implementing the DSA
and the European principles of free speech through their ruling
in Murthy v. Missouri. Even if one were to assert that the

260 About the Supreme Court | United States Courts,
https://www.uscourts.gov/about-federal-courts/educational-resources/about-
educational-outreach/activity-resources/about (last visited Mar 30, 2024).

259 About Congress | U.S. Capitol - Visitor Center,
https://www.visitthecapitol.gov/explore/about-congress# (last visited Mar
30, 2024).

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implementation of a DSA type law in the United States would
bring more public good than harm, its enactment must go
through proper channels of government via the people's
representatives, not forced through by an unelected assortment
of nine Justices. The act of balancing goods and harms is a
classic legislative function and as the nine justices of the Court
are not tasked with the political process of legislating bills into
law, the issue of combating misinformation online is a political
issue that requires a legislative solution, not a judicial one.261

Those who support the DSA may argue that countries
within the EU such as Germany are strong democracies, often
with less polarized electorates than the United States;
therefore, given the polarized nature of the United States, a
court should step in to implement a DSA-styled approach to
regulate free speech protections in order to guard against
misinformation and the dangers that can come from it. It is
important to note that from speech comes power, and power
has the possibility of leading to tyranny and abuse. Free
speech, by nature, is a double-edged sword, which at times it
can be used for good in order to defend the rights of the
minority and offer necessary criticism to individuals in power
without fear of prosecution.262 On the other hand, the
allowance of absolute free speech can lead to rhetoric designed
to enthrall hate groups, leading towards violence.263 While the
dark side of free speech may be dangerous and one may not
like what someone else says, the law must protect the other
person’s right to speak freely and if the roles were reversed, the

263 Daniel Byman, How Hateful Rhetoric Connects to Real-World Violence,
Brookings,
https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-w
orld-violence/ (last visited Mar 30, 2024).

262 Genevieve Lakier, The First Amendment’s Real Lochner Problem, Univ.
Chic. Law Rev.

261 The Court and Constitutional Interpretation - Supreme Court of the
United States, https://www.supremecourt.gov/about/constitutional.aspx (last
visited Feb 5, 2024).

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same dynamics would apply.
In conclusion, the Supreme Court should not utilize the

laws of other nations in their jurisprudence of cases in the
United States, with the exception of the accepted use of such
laws and cases in order to establish legislative intent when
relevant. Additionally, in the case of Murthy v. Missouri, The
Supreme Court should not diffuse the principles of the DSA
within their jurisprudence of the case. By doing such, the Court
would impede the separation of powers between the judicial
and legislative branches of government, severely impacting the
legislature’s ability to create policy and law tackling
misinformation online, as the court would be forcing laws upon
the American people that they did not put in place on
themselves, through their elected representatives. In summary,
the Supreme Court should decide the case of Murthy v.
Missouri based upon current precedent regarding the First
Amendment, including relevant US case law, and the close
nexus test.264

264 State Action Doctrine and Free Speech, LII / Legal Information Institute,
https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-d
octrine-and-free-speech (last visited Apr 3, 2024).

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