Supreme Court Turns a Blind Eye to Federal Authorities Pressuring Social-Media Companies to Ban Speech

By allowing the executive branch to use diffuse pressure to regulate speech in ways that Congress could not by law, the Court expands the imperial power of the president to stifle dissent.

I t is a longstanding principle of First Amendment law, vindicated unanimously by the Supreme Court just last month in National Rifle Ass’n v. Vullo, that the government may not indirectly suppress protected speech by pressuring private actors who distribute that speech or do business with the speaker. But sometimes, the government can violate the Constitution and get away with it. Today’s decision in Murthy v. Missouri — finding that the plaintiffs lacked standing to sue federal officials over their involvement in restricting content on social media — makes it much harder for courts to provide relief when that pressure is exercised, often out of public view, by the various arms of the federal executive branch.

The Court’s dismissal of Murthy on standing grounds in a 6–3 opinion by Justice Amy Coney Barrett reflected, most of all, the Court’s hesitance to insert the judiciary into the complex business of overseeing how the hydra heads of the executive branch interact with big social-media platforms. It also reflects the Court’s suspicion that those platforms were in many cases willing accomplices of the Biden administration’s efforts to throttle the sometimes-fringy speech of vaccine skeptics, election-conspiracy theorists, and other political foes (such as a Covid “disinformation dozen” that included Robert F. Kennedy Jr.). Some of that speech was not constitutionally protected because it was outright false, but there was no real doubt that much of it was protected: statements of opinion that the Biden administration wanted to classify as “misinformation.”

These are sound concerns about overextending the judicial role to resolve problems that are systemic rather than particular and targeted. It may yet leave the courthouse doors open. But for those of us who would like to tyrant-proof the executive branch, it also leaves our public square at the mercy of any executive (now or in the future) who is bent on silencing dissent. The decision should be read by Congress as an urgent demand for legislation to reduce, regulate, and document the channels by which the executive can lean on the social-media giants.

Standing Down

Standing to sue is necessary to invoke the powers of a federal court under Article III, which limits federal courts to hearing “Cases or Controversies.” Courts do not sit to decide the legality of everything the government does, even if it may overstep a branch’s constitutional powers or infringe on individual rights. They sit to hear the complaints of people, groups, and institutions whose rights have been violated. To bring a lawsuit in federal court, you need standing to sue, which is commonly described as having three elements: (1) injury, (2) traceability, and (3) redressability. Injury means that the plaintiff has suffered a concrete, proven harm. Traceability means that the plaintiff’s injury can fairly be said to have been caused by the defendant’s acts. Redressability means that the kind of relief the plaintiff seeks — e.g., money, an injunction, a declaratory judgment — is within the court’s power to provide. No harm traced to the defendant, or no workable relief? No standing, and therefore no federal court jurisdiction.

The Court has not always been consistent in its standing decisions, but it has gored the oxen of both ideological sides more than a few times in the past four years on standing issues. Progressives and liberals were furious when the Court’s conservatives let Missouri sue to stop the Biden administration’s student-loan forgiveness edict (which had been carefully crafted and frequently revised to deny anyone standing) because it would cause financial harm to a state agency. They complained when the conservatives found that the Texas abortion law, allowing private civil damages suits, could not be challenged until such suits were filed.

Conservatives were unhappy when the Court held 7–2 that the Obamacare mandate could no longer be challenged once Congress repealed the fines that gave it teeth, even by states who were burdened by paperwork caused by the mandate. That unhappiness mounted earlier this month when the Court ruled unanimously that pro-life doctors who did not prescribe the mifepristone-based abortion pill could not sue to attack deregulatory steps taken by the Food and Drug Administration that, the doctors argued, dumped additional suffering women into their emergency rooms — a contrast to the broad standing granted in recent years to pro-abortion doctors. The Court also ruled that, where there is no actual injury, Congress can’t create jurisdiction, so the class-action bar can’t file lawsuits for statutory violations unless they can find a class representative and class members who were injured by those violations.

The Court has tended to be more lenient regarding standing in the First Amendment context. In Uzuegbunam v. Preczewski (2021), for example, the Court ruled 8–1 that courts can award “nominal damages” to remedy a campus violation of student free-speech rights even when the student suffered no economic loss; Chief Justice Roberts dissented alone, fretting that “today’s decision risks a major expansion of the judicial role.”

Murthy was brought by two sets of plaintiffs: social-media users whose speech had been throttled in various ways, and states who argued that their citizens suffered both from being deplatformed and from losing the right to hear dissenting speech. The individual plaintiffs had real injuries, but right up front, Justice Barrett’s opinion balked at the broad-ranging injunction entered by the lower court: “If the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game. But because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value.” But a bigger problem was simply that the pressures on the social-media platforms were so multifaceted and diffuse that the majority wasn’t persuaded that the plaintiffs could identify who in particular — the Surgeon General, the White House press secretary, the FBI, even the president himself (who bellowed in 2021 that the social-media companies were “killing people” by not censoring enough information) — pushed the pressure so far that it caused their particular social-media accounts to be squelched:

If a plaintiff demonstrates that a particular Government defendant was behind her past social-media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant. Conversely, if a plaintiff cannot trace her past injury to one of the defendants, it will be much harder for her to make that showing. . . . In the latter situation, the plaintiff would essentially have to build her case from scratch, showing why she has some newfound reason to fear that one of the named defendants will coerce her chosen platform to restrict future speech on a topic about which she plans to post — in this case, either COVID–19 or the upcoming election.

Moreover, the Court chided the Fifth Circuit for “treating the defendants, plaintiffs, and platforms each as a unified whole” rather than analyzing the case against each particular defendant: “The plaintiffs faced speech restrictions on different platforms, about different topics, at different times. Different groups of defendants communicated with different platforms, about different topics, at different times. And even where the plaintiff, platform, time, content, and defendant line up, the links must be evaluated in light of the platform’s independent incentives to moderate content.” This has long been a bedrock principle of standing — but it also runs the risk that looking too closely at each tree will prevent a court from noticing that it’s in a forest. The plaintiffs suffered from the very vastness of the government action against them.

The Court declined to find standing based on self-censorship out of fear of being suppressed — a basis it has extended for standing in more direct First Amendment challenges to government action. And it acknowledged that its ruling simply left some possible government suppression of speech beyond the reach of the courts:

The plaintiffs and the dissent suggest that the platforms continue to suppress their speech according to policies initially adopted under Government pressure. That may be true. But the plaintiffs have a redressability problem. . . . A court could prevent these Government defendants from interfering with the platforms’ independent application of their policies. But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies — even those tainted by initial governmental coercion. [Citation omitted.]

One factor the Court cited in the difficulty of finding a right to relief is simply that “the Federal Government has wound down its own pandemic response measures. . . . [T]he White House disbanded its COVID–19 Response Team, which was responsible for many of the challenged communications in this case.”

The fact that the platforms were already suppressing speech before the pressure began — and that the plaintiffs didn’t sue them — made it harder as well for the majority to conclude that it was possible to tell where the government’s pressure had been the causal factor: “The platforms had independent incentives to moderate content and often exercised their own judgment.” But as Justice Samuel Alito’s dissent (joined by Justices Clarence Thomas and Neil Gorsuch) noted, this was a notably more stringent approach than the Court had taken in, for example, finding standing to challenge census questions based on general and statistical evidence — rather than direct, individualized evidence —  of shifting response rates to the census.

Finally, as it did in the FDA abortion-pill case — where the Court warned that “there is no Article III doctrine of ‘doctor standing’ that allows doctors to challenge general government safety regulations” — Barrett responded with alarm that a “right to listen” as a basis for standing “is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship.” She added, “While we have recognized a First Amendment right to receive information and ideas, we have identified a cognizable injury only where the listener has a concrete, specific connection to the speaker,” such as drug consumers challenging advertising restrictions or academics challenging the denial of a visa to a speaker they had invited to a conference. (Notably, Barrett’s opinion last week in Department of State v. Muñoz rejected a spouse’s claim to sue over her husband’s exclusion from the country, but the reason Barrett rejected the claim was that the wife didn’t claim the violation of any substantive right of her own analogous to a First Amendment violation).

What the Court Allowed

Alito’s dissent in Murthy v. Missouri focused attention on the vast — and frankly damning — factual record compiled in the case in spite of the plaintiffs receiving only a fraction of the discovery they had sought: “This is one of the most important free speech cases to reach this Court in years.” But that also emphasized why even some of the conservative justices were uncomfortable with how much this case turned on the facts rather than the general principle of law, which was identical to the one vindicated in Vullo. I’ll leave for another day all the details of that campaign of pressure to censor; Alito called out the Court for what its ruling permits:

For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. . . . The Court . . . permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.

That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.

That’s the same sort of structural critique that Alito aimed at the majority in the Consumer Financial Protection Bureau funding case. Given the increasing prominence of social-media platforms in controlling what Americans read and who can hear them speak, he warned that it was perilous to overlook how government pressure operates on them:

Internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996 . . . which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company. And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.

For these and other reasons, internet platforms have a powerful incentive to please important federal officials, and the record in this case shows that high-ranking officials skillfully exploited Facebook’s vulnerability. When Facebook did not heed their requests as quickly or as fully as the officials wanted, the platform was publicly accused of “killing people” and subtly threatened with retaliation. Not surprisingly these efforts bore fruit. Facebook adopted new rules that better conformed to the officials’ wishes, and many users who expressed disapproved views about the pandemic or COVID–19 vaccines were “deplatformed” or otherwise injured.

Alito detailed how the coercive campaign pervaded the Biden administration, from the president himself to senior officials to White House flunkies who did the day-to-day work. For example, describing the behavior of Andy Slavitt, the White House senior adviser for the Covid–19 response, and Rob Flaherty, the White House director of digital strategy — the latter of whom sticks out in the factual record for his foul-mouthed tirades and unceasing nagging of Facebook — Alito observed:

Slavitt and Flaherty did not simply ask Facebook for information. They browbeat the platform for months and made it clear that if it did not do more to combat what they saw as misinformation, it might be called to account for its shortcomings. And as for the supposedly “fleeting” nature of the numerous references to potential consequences, death threats can be very effective even if they are not delivered every day. . . .

Facebook’s responses to the officials’ persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations. Time and time again, Facebook responded to an angry White House with a promise to do better in the future. . . .

Internally, Facebook saw little merit in many of the White House’s critiques. One employee labeled the White House’s understanding of misinformation “completely unclear” and speculated that “it’s convenient for them to blame us” “when the vaccination campaign isn’t going as hoped.” . . . Nonetheless, Facebook figured that its “current course” of “in effect explaining ourselves more fully, but not shifting on where we draw the lines,” is “a recipe for protracted and increasing acrimony with the [White House].” . . . “Given the bigger fish we have to fry with the Administration,” such as the EU-U.S. dispute over “data flows,” that did not “seem like a great place” for Facebook-White House relations “to be.”

The ominous feature of this particular campaign — which Congress could properly restrict and regulate — was how much of it went on behind closed doors, where citizens could not see what their government was doing to restrict their speech:

Flaherty, Slavitt, and other officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of the President’s bully pulpit. That stretches the concept beyond the breaking point. . . . The Government is hard-pressed to find any prior example of the use of the bully pulpit to threaten censorship of private speech.

It’s hard to say that the decision in Murthy is exactly wrong. Even when there are obvious constitutional violations and injuries, the law of standing necessarily requires the Court to apply some level of practical judgment about what is and is not properly within the judicial power to trace injuries and craft remedies. The original meaning of Article III can sometimes offer useful answers by looking to the Anglo-American common-law traditions, but there are many standing questions on which original meaning offers only limited guidance.

But Alito is right that today’s decision is, at a minimum, deeply disappointing for what it places outside any judicial remedy. In an age when speech is increasingly digital, when executive power only grows more vast, diffuse, and lawless, when cultural polarization and declining respect for civil discourse generate ever-greater demands to use the levers of federal executive power to silence opponents, a lack of judicial remedies may be a great cause for regret, and sooner than anyone thinks.

The Court will, probably within the next two days, decide whether states can protect speakers from content moderation by the platforms. It should (and, I suspect, will) rule that the government isn’t allowed to tell the platforms what they can’t ban. But if it does so, its decision will turn largely on the fact that Texas and Florida tried to control the platforms’ behavior by writing laws instead of by executive browbeating. The lesson will be received, and the law will fall silent.