The Volokh Conspiracy
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Court Agrees to Hear Missouri v. Biden Federal Government / Social Media Case
From today's order and accompanying opinion in Murthy v. Missouri:
The application for stay … is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana … as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023 … is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application….
Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting from grant of application for stay.
This case concerns what two lower courts found to be a "coordinated campaign" by high-level federal officials to suppress the expression of disfavored views on important public issues. To prevent the continuation of this campaign, these officials were enjoined from either "coerc[ing]" social media companies to engage in such censorship or "active[ly] control[ling]" those companies' decisions about the content posted on their platforms. Today, however, a majority of the Court, without undertaking a full review of the record and without any explanation, suspends the effect of that injunction until the Court completes its review of this case, an event that may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our democratic form of government, and therefore today's decision is highly disturbing.
This case began when two States, Missouri and Louisiana, and various private parties filed suit alleging that popular social media companies had either blocked their use of the companies' platforms or had downgraded their posts on a host of controversial subjects, including "the COVID–19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story." According to the plaintiffs, Federal Government officials "were the ones pulling the strings," that is, these officials "'coerced, threatened, and pressured [the] social-media platforms to censor [them].'" Based on extensive findings of fact that spanned 82 pages, the District Court held that the plaintiffs were likely to be able to prove their claims and were threatened with irreparable harm, and it therefore issued a preliminary injunction against a number of Executive Branch agencies and officials.
On appeal, the Court of Appeals agreed with the District Court's assessment of the evidence, which, in its words, showed the existence of "a coordinated campaign" of unprecedented "magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life." The Court of Appeals found that "the district court was correct in its assessment—'unrelenting pressure' from certain government officials likely 'had the intended result of suppressing millions of protected free speech postings by American citizens.'"
To stop this "campaign," the injunction, as it now stands, prohibits the covered officials from doing two things. First, they may not "coerce" social media platforms to make "content-moderation decisions." Second, they may not "meaningfully contro[l]" social media platforms' "content-moderation" efforts. Displeased with these restrictions, the Government filed an emergency application asking us to stay the effect of this injunction pending certiorari.
Under a straightforward application of the test we use in deciding whether to grant a stay, the Government's application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, "a likelihood that irreparable harm will result from the denial of a stay." A stay is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Thus, the Government in this case must make a "clear showing" of irreparable harm. And to do that, it is not enough to "simply sho[w] some 'possibility of irreparable injury.'" A mere "'possibility' standard is too lenient." Instead, the Government must prove that irreparable harm is "likel[y]." Here, the Government's attempts to demonstrate irreparable harm do not come close to clearing this high bar.
Instead of providing any concrete proof that "harm is imminent," the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. But hypotheticals are just that—speculation that the Government "may suffer irreparable harm at some point in the future," not concrete proof. And such speculation does not establish irreparable harm.
Moreover, it does not appear that any of the Government's hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court's unreasoned order. The Government claims that the injunction might prevent "the President and the senior officials who serve as his proxies" from "speak[ing] to the public on matters of public concern." Application 36; accord, id., at 3 (suggesting that the Fifth Circuit's decision implicates "the use of the Office's bully pulpit to seek to persuade Americans"). The President himself is not subject to the injunction, and in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government's view of responsible conduct.
The injunction applies only when the Government crosses the line and begins to coerce or control others' exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?
Despite the Government's conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified. The majority takes this action in the face of the lower courts' detailed findings of fact. But "[w]here an intermediate court reviews, and affirms, a trial court's factual findings, this Court will not 'lightly overturn' the concurrent findings of the two lower courts." And the majority suspends the relief afforded below without a word of explanation.
Applying our settled test for granting a stay, I would deny the Government's application, but I would specify in the order that in the unlikely event that a concrete occurrence presents a risk of irreparable harm, the Government can apply for relief at that time, including, if necessary, by filing an emergency application here. Such an order would fully protect the ability of Executive Branch officials to speak out on matters of public concern.
At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.
Since there's no opinion defending the stay, I thought I'd pass along the introduction to the Solicitor General's stay application:
This application concerns an unprecedented injunction installing the United States District Court for the Western District of Louisiana as the superintendent of the Executive Branch's communications with and about social-media platforms—including senior White House officials' speech addressing some of the most salient public issues of the day. The lower courts held that federal officials had transformed the private platforms' content-moderation decisions into state action and violated the First Amendment by urging platforms to remove COVID-19 misinformation, highlighting the risk of disinformation from foreign actors, and responding to the platforms' inquiries about matters of public health. The courts then entered a sweeping preliminary injunction governing thousands of federal officials' and employees' speech concerning any content posted on any social-media platform by anyone. That injunction flouts bedrock principles of Article III, the First Amendment, and equity.
First, respondents lack Article III standing. Respondents are five individual social-media users and two States. The Fifth Circuit held that they have standing because their posts have been moderated by social-media platforms. But respondents failed to show that those actions were fairly traceable to the government or redressable by injunctive relief. To the contrary, respondents' asserted instances of moderation largely occurred before the allegedly unlawful government actions. The Fifth Circuit also held that the state respondents have standing because they have a "right to listen" to their citizens on social media. App., infra, 204a. But the court cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent's right to speak.
Second, the Fifth Circuit's decision contradicts fundamental First Amendment principles. It is axiomatic that the government is entitled to provide the public with information and to "advocate and defend its own policies." A central dimension of presidential power is the use of the Office's bully pulpit to seek to persuade Americans—and American companies—to act in ways that the President believes would advance the public interest. President Kennedy famously persuaded steel companies to rescind a price increase by accusing them of "ruthless[ly] disregard[ing]" their "public responsibilities." President Bush decried "irresponsible" subprime lenders that shirked their "responsibility to help" distressed homeowners. And every President has engaged with the press to promote his policies and shape coverage of his Administration.
Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion: If the government coerces a private party to act, that party is a state actor subject "to the constraints of the First Amendment." And this Court has warned against expansive theories of state action that would "eviscerate" private entities' "rights to exercise editorial control over speech and speakers on their properties or platforms."
The Fifth Circuit ignored those principles. It held that officials from the White House, the Surgeon General's office, and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action—and despite the fact that the platforms declined the officials' requests routinely and without consequence. Indeed, the Fifth Circuit suggested that any request from the FBI is inherently coercive merely because the FBI is a powerful law enforcement agency. And the court held that the White House, the FBI, and the CDC "significantly encouraged" the platforms' content-moderation decisions—and thus transformed those decisions into state action—on the theory that officials were "entangled" in the platforms' decisions. The court did not define that novel standard, but found it satisfied primarily because platforms requested and relied upon CDC's guidance on matters of public health.
The implications of the Fifth Circuit's holdings are startling. The court imposed unprecedented limits on the ability of the President's closest aides to use the bully pulpit to address matters of public concern, on the FBI's ability to address threats to the Nation's security, and on the CDC's ability to relay public-health information at platforms' request. And the Fifth Circuit's holding that platforms' content-moderation decisions are state action would subject those private actions to First Amendment constraints—a radical extension of the state-action doctrine.
Third, the lower courts' injunction violates traditional equitable principles. An injunction must "be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Here, however, the injunction sweeps far beyond what is necessary to address any cognizable harm to respondents: Although the district court declined to certify a class, the injunction covers the government's communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics. And it forces thousands of government officials and employees to choose between curtailing their interactions with (and public statements about) social-media platforms or risking contempt should the district court conclude that they ran afoul of the Fifth Circuit's novel and ill-defined concepts of coercion and significant encouragement.
The district court's injunction has been stayed during the Fifth Circuit proceedings, and the Fifth Circuit extended an administrative stay through Monday, September 18, to allow the government to seek relief from this Court. If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public. In contrast, a continued stay pending further proceedings in this Court would impose no cognizable harm on respondents. The Court should therefore stay the injunction in full pending the filing and disposition of the government's forthcoming petition for a writ of certiorari. At a minimum, the Court should stay the injunction insofar as it applies beyond any content posted by the individual respondents themselves.
