In the litigation underlying today’s Supreme Court ruling in Murthy v. Missouri, two states and five social-media users sued dozens of executive-branch officials and agencies for allegedly pressuring social-media platforms to suppress protected speech related to the covid pandemic in violation of the First Amendment. By a vote of 6 to 3, the Court ruled that plaintiffs lacked standing to obtain injunctive relief against the defendants.
Justice Amy Coney Barrett wrote the majority opinion, which the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Jackson joined. Justice Alito, joined by Justices Thomas and Gorsuch, dissented: they disagreed with the majority’s ruling on standing and, addressing the First Amendment question, concluded that at least one plaintiff was entitled to a preliminary injunction.
In this post, I provide a quick and selective summary of the competing opinions, along with some comments. (As usual, I will draw freely from the opinions without cluttering this post with quotation marks and ellipses.)
1. Justice Barrett’s majority opinion:
To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. A proper case or controversy exists only when at least one plaintiff establishes standing to sue.
Plaintiffs do not seek to enjoin the social-media platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress injury that results from the independent action of some third party not before the court. Second, because the plaintiffs request forward-looking relief, they must face a real and immediate threat of repeated injury.
We first consider whether the plaintiffs have demonstrated that their past injuries are traceable to the defendants. The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality.
Plaintiffs fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms. Detailed discussions of plaintiffs’ claims: pp. 14-21.
Of all the plaintiffs, Jill Hines makes the best showing of a connection between her social-media restrictions and communications between the relevant platform (Facebook) and specific defendants (CDC and the White House). That said, most of the lines she draws are tenuous, particularly given her burden of proof at the preliminary injunction stage—recall that she must show that her restrictions are likely traceable to the White House and the CDC. Facebook was targeting her pages before almost all of its communications with the White House and the CDC, which weakens the inference that her subsequent restrictions are likely traceable to government-coerced enforcement of Facebook’s policies rather than to Facebook’s independent judgment. Even assuming, however, that Hines has eked out a showing of traceability for her past injuries, the past is relevant only insofar as it predicts the future. And this weak record gives her little momentum going forward.
Without proof of an ongoing pressure campaign, it is entirely speculative that the platforms’ future moderation decisions will be attributable, even in part, to the defendants. On this record, it appears that the frequent, intense communications that took place in 2021 had considerably subsided by 2022. It is thus very difficult for Hines to show that she faces future harm that is traceable to officials in the White House and the Surgeon General’s Office.
2. Alito dissent:
What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in NRA v. Vullo (decided this term), 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.
a. On standing:
The record clearly shows that Hines was still being censored when she sued—and that the censorship continued thereafter. That was sufficient to establish the type of injury needed to obtain injunctive relief.
To sue the White House officials, Hines had to identify a causal connection between the actions of those officials and her censorship. Hines did not need to prove that it was only because of those officials’ conduct that she was censored. Rather, as we held in Department of Commerce v. New York (2019), it was enough for her to show that one predictable effect of the officials’ action was that Facebook would modify its censorship policies in a way that affected her. Hines easily met that test, and her traceability theory is at least as strong as the State of New York’s in the Department of Commerce case. [Detailed discussion at pp. 18-20.]
The Court reaches the opposite conclusion by applying a new and heightened standard. Here, it is reasonable to infer (indeed, the inference leaps out from the record) that the efforts of the federal officials affected at least some of Facebook’s decisions to censor Hines. All of Facebook’s demotion, content-removal, and deplatforming decisions are governed by its policies. So when the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook’s censorship decisions. Nothing more is needed.
What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook’s rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.
The Court also argues that Hines lacks standing because the threat of future injury dissipated at some point during summer 2022 when the officials’ pressure campaign tapered off. But this argument errs in two critical respects. First, the effects of the changes the officials coerced persisted. Second, the White House threats did not come with expiration dates, and it would be silly to assume that the threats lost their force merely because White House officials opted not to renew them on a regular basis.
The doctrine of standing is cheapened when the rules are not evenhandedly applied.
b. On First Amendment claim (again, a matter that majority does not reach):
As the Court held more than 60 years ago, the Government may not coerce or intimidate a third-party intermediary into suppressing someone else’s speech.
The principle recognized in our precedents requires a court to distinguish between permissible persuasion and unconstitutional coercion, and in Vullo (decided this term), we looked to three leading factors that are helpful in making that determination: (1) the authority of the government officials who are alleged to have engaged in coercion, (2) the nature of statements made by those officials, and (3) the reactions of the third party alleged to have been coerced. In this case, all three factors point to coercion.
(1) It is beyond any serious dispute that the top-ranking White House officials and the Surgeon General possessed the authority to exert enormous coercive pressure. Pp. 25-27. (2) The officials’ communications with Facebook possess all the hallmarks of coercion. Pp. 27-32. (3) Facebook’s responses to the officials’ persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations. Pp. 32-34.
3. The competing opinions display that there is a lot of play in the joints in assessing standing. Whether or not the Court has been consistent in its approach is an important question that warrants careful analysis.
4. It’s unclear to me why plaintiffs did not seek damages for past violations. If they had done so, the courts below would probably not have already decided the damages question. But it would be open for them to do so on remand. So there would still be the prospect of an ultimate merits decision on the legality of the challenged governmental actions. [Oops. As a reader reminds me (and as I should have had in mind), the Court has sharply limited the availability of implied causes of action for damages against federal officials for alleged constitutional violations.]
Disclosure: One of the plaintiffs in the case, Dr. Aaron Kheriaty, is a colleague of mine at the Ethics and Public Policy Center.