MURTHY v. MISSOURI

This past week, the United States Supreme Court held that two states – Missouri and Louisiana – and several private individuals did not have standing to obtain an injunction against the United States government to prevent the government from communicating with social media platforms about content moderation.

Government Communications with Social Media

Beginning in 2020, and continuing in 2021 and 2022, U.S. government agencies and officials had ongoing communications with social media platforms like Facebook and Twitter encouraging – or some might say coercing – the platforms to remove user content that spread misinformation about the COVID-19 pandemic and the U.S. elections. The plaintiffs, who had some of their social media posts removed by the platforms, filed a lawsuit seeking an injunction preventing the U.S. government from pressuring the social media companies to remove user content. The plaintiffs argued that the government had infringed on their rights to free speech.

Lower Court Decisions

A federal district court in Louisiana granted an injunction and the Fifth Circuit Court of Appeals largely upheld the lower court’s order reasoning that the government’s actions in effect coerced the platforms into becoming state actors and suppressed free speech. The Fifth Circuit modified the injunction to prohibit the government from coercing or significantly encouraging social-media companies to suppress protected speech on their platforms.

Supreme Court Decision

The United States Supreme Court, in a 6-3 decision, reversed the Fifth Circuit finding that the plaintiffs did not have standing to seek the injunction. As the Court explained, “A proper case or controversy exists only when at least one plaintiff ‘establish[es] that [she] ha[s] standing to sue,’ i.e., that she has 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[.]” Thus, to have standing in the case, “the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.” The Court ruled that, based on the evidentiary record, the plaintiffs did not make this showing.

The Court examined the record to see if any past restrictions on the plaintiffs’ social media posts were caused by the government’s actions. The Court found the record to be weak on this point and that, rather, “the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.” In other words, the Court said the record did not support a finding that “a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic.” Thus, the Court found that the plaintiffs failed “to link their past social-media restrictions and the defendants’ communications with the platforms.” In short, the Court held the plaintiffs did not establish a substantial risk of future injury that is traceable to the government and likely to be redressed by an injunction against the government.

Opinion Breakdown

Justice Barrett delivered the decision, in which Justices Roberts, Sotomayor, Kagan, Kavanaugh, and Jackson joined. Justice Alito filed a dissent, in which Justices Thomas and Gorsuch joined.

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