The Volokh Conspiracy

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Supreme Court Sends Message with Narrow Standing Holding in Murthy v. Missouri

Even if one thinks the federal government crossed the line in pushing more aggressive social-media-platform content moderation policies, plaintiffs must still satisfy the traditional requirements of Article III standing.


In a 6-3 decision authored by Justice Barrett, the Supreme Court concluded that none of the plaintiffs in Murthy v. Missouri had Article III standing to seek an injunction barring federal officials from seeking to influence content-moderation decisions on social media platforms. While the decision divided the Court, and Justice Alito wrote a lengthy dissent (joined by Justices Gorsuch and Thomas), Murthy appears to be a narrow decision, though one that sends a message to lower courts and litigants.

Here is Justice Barrett's summary of the opinion:

During the 2020 election season and the COVID–19 pandemic, social-media platforms frequently removed, demoted, or fact checked posts containing allegedly false or misleading information. At the same time, federal officials, concerned about the spread of "misinformation" on social media, communicated extensively with the platforms about their content-moderation efforts.

The plaintiffs, two States and five social-media users,sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to suppress protected speech in violation of the First Amendment. The Fifth Circuit agreed, concluding that the officials' communications rendered them responsible for the private platforms' moderation decisions. It then affirmed a sweepingpreliminary injunction.

The Fifth Circuit was wrong to do so. To establish standing, the plaintiffs must demonstrate a substantial risk that,in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.

I believe this holding is rather narrow for a few reasons.

First, the Court emphasizes that it is always more difficult to show standing when the alleged injury "results from the independent action of some third party not before the court," in this case the social media companies.

Second, the opinion is focused on whether the plaintiffs had standing for forward-looking injunctive relief. As it stresses, even if one or more of the plaintiffs could show that their social media posts were censored or suppressed due to intervention by government officials, that is not enough to justify the imposition of an injunction. In order to have standing for that sort of prospective relief, the plaintiffs are required to show "a real and immediate threat of repeated injury," and that is something they failed to do. Further, given that the plaintiffs sought a preliminary injunction, they were required to make a "clear showing" that they were "likely to establish each element of standing."

Writes Justice Barrett:

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. On this record, that is a tall order.

Among other things, Justice Barrett notes that the respective platforms engaged in content moderation before they were pressured by government officials and that the plaintiffs were generally unable to show that specific instances of content moderation were the result of specific actions by government officials. She also charges the Fifth Circuit withy having been too credulous of the plaintiffs claims and drops a footnote that "many" of the district court's factual findings "appear to be clearly erroneous." (Ouch.)

And, again, Justice Barrett emphasizes the posture of the case:

To obtain forward-looking relief, the plaintiffs must establish a substantial risk of future injury that is traceable to the Government defendants and likely to be redressed by an injunction against them. To carry that burden, the plaintiffs must proffer evidence that the defendants' "allegedly wrongful behavior w[ould] likely occur or continue." . . . But without proof of an ongoing pressure campaign, it is entirely speculative that the platforms' future moderation decisions will be attributable, even in part, to the defendants.

Justice Alito, in dissent, is more forgiving of the plaintiffs' claims, perhaps due to the First Amendment issues at stake. In his view, at least one of the private plaintiffs alleged enough to satisfy the requirements of Article III, even if that plaintiffs did not connect all the dots in the best way. Yet as Justice Barrett notes, it is not for judges to draw causal connections or find a basis for standing the parties have not asserted. To the contrary, it is well established that the burden is on the plaintiffs to allege facts sufficient to satisfy the requirements of standing, and this often means that plaintiffs that failed to do their homework losing cases on standing grounds that could have been heard had the case been presented differently. Writes Barrett at the close of the opinion:

The plaintiffs, without any concrete link between their injuries and the defendants' conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court's standing doctrine prevents us from "exercis[ing such] general legal oversight" of the other branches of Government.

Message to litigants: Do the work.

Justice Alito also argues that the majority is applying a more stringent standing test than it has in prior cases. For instance, Justice Alito claims that the decision here is incompatible with Massachusetts v. EPA because the Court found standing to sue the Environmental Protection Agency even though "no one could say that the relief sought—reconsideration by the EPA of its decision not to regulate the emission of greenhouse gases—would actually remedy the Commonwealth's alleged injuries, such as the loss of land due to rising sea levels."

Justice Barrett responds in a footnote that this was because Massachusetts declared and applied a doctrine of "special solicitude" for state litigants that is not applicable to the private litigant Justice Alito believes should have standing. I think an even more important distinction (given that there are also state litigants here, albeit not ones that made a compelling showing for standing purposes) is that in Massachusetts the Supreme Court (wrongly) concluded that the Clean Air Act afforded the litigants a procedural right which justified relaxing the normal requirements for redressability. Wrote Justice Stevens in Massachusetts: "When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." Here, however, there is no such procedural right to ease the standing burden for any of the plaintiffs.

Justice Alito also thinks the Court was more forgiving in the Census case, where the plaintiff states' standing theory "depended on illegal conduct by third parties and an attenuated chain of causation." As Alito notes, in Department of Commerce v. New York "It was enough . . . that the failure of some aliens to respond to the census was 'likely attributable' to the Government's introduction of a citizenship question." Justice Barrett responds that this was based upon an express district court finding that the citizenship question would drive a lower response rate. It turns out this might not be true, but the finding was accepted by a unanimous Court. I would add that Department of Commerce was another case in which special solicitude for state litigants may have played a role, even if the Court did not say as much.

Finally, I think it is worth noting that this is the second case this term in which the Supreme Court concluded that the Fifth Circuit was a bit fast-and-loose with its Article III standing analysis (the other being the mifepristone case, AHM v. FDA). It also brings to mind the Court's decision in California v. Texas, in which a majority of the Court thought the Fifth Circuit had gotten basic elements of the standing analysis wrong, even if one could argue there were prior cases in which the Court had been more forgiving (and Justice Alito dissented). The message here to lower courts: Make litigants do the work.

My bottom line is that I do not think that Murthy does much to change the law of standing, but it does emphasize that those who wish to push aggressive legal claims have to make sure they have their ducks in a row, and cannot skimp out on ensuring that they satisfy jurisdictional requirements. A majority of this Court may be open to shifting the law in a more conservative direction, but they are not going to cut jurisdictional corners or abandon core elements of conservative jurisprudence to get there. This, too, is a message for lower courts.