The Supreme Court’s Dangerous Standing Ruling in Murthy v. Missouri
In today’s ruling in Murthy v. Missouri, the Supreme Court dismissed claims that various federal agencies violated the First Amendment by pressuring social media firms to restrict posts, on the grounds that the plaintiffs lacked standing to file a lawsuit. Because the Court didn’t reach the merits, it didn’t make any ruling on the substance of First Amendment free speech doctrine. It certainly did not rule that what the government did here was legal. But the restrictive approach to standing adopted by the majority might make it very difficult for victims of indirect government coercion to get their free speech claims into court.
The plaintiffs in this case are people who allege that federal agencies (particularly the White House, the Surgeon General, and the CDC) pressured social media firms like Facebook and Twitter to bar posts about the Covid pandemic, vaccines, and some other issues, which the agencies regarded as harmful “misinformation.” The lower courts ruled in favor of the plaintiffs on some of their claims, because they found extensive evidence that federal agencies did not just engage in persuasive “jawboning,” but threatened the social media firms with coercion, if they refused to comply. As the Fifth Circuit decision in the case put it:
On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content….
And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply. As one official put it, “removing bad information” is “one of the easy, low-bar things you guys [can] do to make people like me”—that is, White House officials—”think you’re taking action.”
The Supreme Court, however, ruled that the resulting restrictions on posting did not create an “injury” sufficient for standing, because 1) the plaintiffs did not have sufficient proof that the social media firms’ content restrictions were a result of government pressure, as opposed to the firms’ own independent judgment, and 2) they were seeking “forward-looking” relief in the form of an injunction against future government pressure on social media firms, but they didn’t have evidence of an proof of “an ongoing pressure campaign,” as opposed to one that was largely ended.
It is true, as Justice Amy Coney Barrett writes in the majority opinion, that Facebook and Twitter imposed some content moderation restrictions even before any government attempts to pressure them. But the lower courts described additional restrictions that were imposed after the pressure began, and likely as a result of it. Justice Samuel Alito summarizes some of the relevant evidence in his dissent (pp. 6-15), which describes multiple examples of Facebook tightening content moderation policies, in response to specific complaints brought by administration officials.
Justice Barrett is also right to point out that federal officials’ efforts to pressure social media firms about Covid-related posts tapered off in 2022, probably because of the waning of the pandemic. But that doesn’t prove there was no longer any threat of retaliation for posts the agencies objected to. As Alito notes, “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.” Moreover, as he explains, the threats were still ongoing at the time at least one of the plaintiffs filed her lawsuit.
Alito’s dissent is marred by some rhetorical excesses. For example, it’s a mistake to de
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