The Supreme Court ruled 6-3 to toss Murthy v. Missouri, which accused President Joe Biden’s administration of pressuring social media companies to censor COVID “misinformation.”
Missouri and Louisiana, along with five citizens, filed a lawsuit against the administration in 2022.
Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett voted in the affirmative.
Barrett authored the majority opinion.
The majority held that the plaintiffs did not establish Article III standing. The plaintiffs requested “forward-looking relief.” Therefore, they had to prove they would face “a real and immediate threat of repeated injury.”
They also rejected the plaintiffs’ arguments because social media platforms censored material before communications with the Biden administration and still do after communications ceased to exist, so it’s all good.
“Putting these requirements together, 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,” wrote Barrett. “Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden. On the record in this case, that is a tall order.”
It didn’t help that the plaintiffs did not provide any links between restrictions on their social media to the White House communications with the companies:
The state plaintiffs, Louisiana and Missouri, refer only to action taken by Facebook against a Louisiana state representative’s post about children and the COVID–19 vaccine. But they never say when Facebook took action against the official’s post—a critical fact in establishing a causal link. Nor have the three plaintiff doctors established a likelihood that their past restrictions are traceable to either the White House officials or the CDC. They highlight restrictions imposed by Twitter and LinkedIn, but point only to Facebook’s communications with White House officials. Plaintiff Jim Hoft, who runs a news website, experienced election-related restrictions on various platforms. He points to the FBI’s role in the platforms’ adoption of hacked-material policies and claims that Twitter restricted his content pursuant to those policies. Yet Hoft’s declaration reveals that Twitter took action according to its own rules against posting private, intimate media without consent. Hoft does not provide evidence that his past injuries are likely traceable to the FBI or CISA.
The majority also rejected future harm because communications between the White House and social media companies has died down:
But even [healthcare activist Jill] Hines, with her superior showing on past harm, has not shown enough to demonstrate likely future harm at the hands of these defendants. On this record, it appears that the frequent, intense communications that took place in 2021 between the Government defendants and the platforms had considerably subsided by 2022, when Hines filed suit. Thus it is “no more than conjecture” to assume that Hines will be subject to Government-induced content moderation.
The majority also shot down the plaintiffs’ “right to listen” theory:
The individual plaintiffs argue that the First Amendment protects their interest in reading and engaging with the content of other speakers on social media. This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship— at least so long as they claim an interest in that person’s speech. While the Court has recognized a “First Amendment right to receive information and ideas,” the Court has identified a cognizable injury only where the listener has a concrete, specific connection to the speaker.
The plaintiffs tried to prove this point by insisting “hearing unfettered speech on social media is critical to their work as scientists, pundits, and activists.”
Barrett pointed out that they did not provide the court with “any specific instance of content moderation that caused them identifiable harm.”
“The state plaintiffs assert a sovereign interest in hearing from their citizens on social media, but they have not identified any specific speakers or topics that they have been unable to hear or follow,” added Barrett. “And States do not have third-party ‘standing as parens patriae to bring an action against the Federal Government’ on behalf of their citizens who have faced social-media restrictions.”
Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented.
“Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, see National Rifle Association of America v. Vullo, 602 U. S. 175 (2024), and that is what happened in this case,” wrote Alito.
The majority claimed the plaintiffs did not provide proof of future harm.
However, Alito stressed that online platforms are more vulnerable than the old media:
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, 47 U. S. C. §230, 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.
No future harm? How about the new rules?
“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 continued.
Alito also pointed out that Facebook cowering to the White House is not the behavior one expects “from an independent news source or journalistic entity.”
Alito wrote:
Instead, Facebook’s responses resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster. Facebook told White House officials that it would “work . . . to gain your trust.” When criticized, Facebook representatives whimpered that they “thought we were doing a better job” but promised to do more going forward. They pleaded to know how they could “get back to a good place” with the White House. And when denounced as “killing people,” Facebook responded by expressing a desire to “work together collaboratively” with its accuser. The picture is clear.
The dissenters return to future harm, concentrating on Hines. She had to prove to the courts she would face “‘real and immediate threat of repeated injury’ that existed at the time she sued-that is, on August 2, 2022.”
I emphasized that sentence for a reason: “But no matter what test is applied, the record clearly shows that Hines was still being censored when she sued—and that the censorship continued thereafter.”
SCOTUS has affirmed and reaffirmed for 60 years that “Government may not coerce or intimidate a third-party intermediary into suppressing someone else’s speech.”
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