Murthy v. Missouri, a case decided by the Supreme Court on June 26, deals with the question of alleged government jawboning and censorship of social media platforms. The plaintiffs, the attorneys general from Missouri and Louisiana along with seven individual plaintiffs, sought a preliminary injunction to limit the ability of White House and other federal government officials to pressure social media companies to remove content from their platforms that the federal government deems problematic.
In its ruling, the Supreme Court declined to uphold a preliminary injunction that the lower courts had issued against named federal government officials, preventing them from seeking to communicate with social media companies on a range of issues. Writing for the majority, Justice Barrett held that the plaintiffs lacked standing to sue. As a result, the Court did not reach the merits of the case. In a dissenting opinion, Justice Alito argued that the government took action that had a clear impact on content moderation decisions of Facebook and other social media platforms and felt that plaintiffs had established requisite harm to confer standing.
What makes this case unique is that the communications happened during a once-in-a-century public health crisis, which meant that the government had an interest in limiting the spread of dangerous misinformation about the COVID-19 pandemic. And as Justice Kavanaugh, among others, pointed out at oral argument, even outside of a public health emergency, communications between federal government officials, including high-ranking White House officials, and private entities, such as media companies and online platforms, about content that they have published or are planning to publish, are normal across administrations and, sometimes, necessary for those government officials to properly discharge their duties. What government officials cannot do is coerce or dictate a media outlet or platform’s content moderation decisions.
The Court, however, did not reach the question of whether the communications at issue had crossed that line since it found that the plaintiff’s lacked the ability to sue in the first place. In order to have standing, a plaintiff, under long-established Supreme Court precedent, must show that they have suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” An additional challenge that the plaintiffs confronted in this case was that since they were looking for prospective relief, they also had to show that they faced “a real and immediate threat of repeated injury” that is attributable to the defendants (i.e., the government). According to Justice Barrett, proof of such an ongoing government-orchestrated pressure campaign was entirely speculative and, therefore, not enough for the plaintiffs to carry their burden.
In his dissent, Justice Alito called Murthy “one of the most important free speech cases to reach this Court in years.” And he argued for a more forgiving standing standard, finding that “when the White House pressured Facebook to amend some of the policies related to speech in which Hines [one of the plaintiffs] engaged, those amendments necessarily impacted some of Facebook’s censorship decisions. Nothing more is needed [to find standing].”
What this means
Because this case “be[gan]—and end[ed]—with standing,” it tells us little new about the Court’s First Amendment jurisprudence and how, in a future case, it might distinguish between acceptable (noncoercive) government outreach to online platforms, and when such contacts become coercive and therefore constitutionally untenable. In the near term, however, it provides some cover for government officials to request (but not demand) that social media platforms act to stem the spread of misinformation.
