The Volokh Conspiracy
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The Supreme Court's Dangerous Standing Ruling in Murthy v. Missouri
The standing requirements laid down by the majority might make it extremely difficult or impossible for victims of indirect goverment censorship to get their cases to court.
In today's ruling in Murthy v. Missouri, the Supreme Court dismissed claims that various federal agencies violated the First Amendment by pressuring social media firms to restrict posts, on the grounds that the plaintiffs lacked standing to file a lawsuit. Because the Court didn't reach the merits, it didn't make any ruling on the substance of First Amendment free speech doctrine. It certainly did not rule that what the government did here was legal. But the restrictive approach to standing adopted by the majority might make it very difficult for victims of indirect government coercion to get their free speech claims into court.
The plaintiffs in this case are people who allege that federal agencies (particularly the White House, the Surgeon General, and the CDC) pressured social media firms like Facebook and Twitter to bar posts about the Covid pandemic, vaccines, and some other issues, which the agencies regarded as harmful "misinformation." The plaintiffs argue some of their posts were taken down or barred as a result. The lower courts ruled in favor of the plaintiffs on some of their claims, because they found extensive evidence that federal agencies did not just engage in persuasive "jawboning," but threatened the social media firms with coercion, if they refused to comply. As the Fifth Circuit decision in the case put it:
On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content….
And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms' best interests to comply. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."
The Supreme Court, however, ruled that the resulting restrictions on posting did not create an injury caused by government action and redressable by judicial action, sufficient for standing, because 1) the plaintiffs did not have sufficient proof that the social media firms' content restrictions were a result of government pressure, as opposed to the firms' own independent judgment, and 2) they were seeking "forward-looking" relief in the form of an injunction against future government pressure on social media firms, but they didn't have evidence of "an ongoing pressure campaign," as opposed to one that was largely ended in 2022.
It is true, as Justice Amy Coney Barrett writes in the majority opinion, that Facebook and Twitter imposed some content moderation restrictions even before any government attempts to pressure them. But the lower courts described additional restrictions that were imposed after the pressure began, and likely as a result of it. Justice Samuel Alito summarizes some of the relevant evidence in his dissent (pp. 6-15), which describes multiple examples of Facebook tightening content moderation policies, in response to specific complaints brought by administration officials.
Justice Barrett is also right to point out that federal officials' efforts to pressure social media firms about Covid-related posts tapered off in 2022, probably because of the waning of the pandemic. But that doesn't prove there was no longer any threat of retaliation for posts the agencies objected to. As Alito notes, "the White House threats did not come with expiration dates, and it would be silly to assume that the threats lost their force merely because White House officials opted not to renew them on a regular basis." Moreover, as he explains, the threats were still ongoing at the time at least one of the plaintiffs filed her lawsuit.
Alito's dissent is marred by some rhetorical excesses. For example, it's a mistake to describe even voluntary social media firm content moderation as "censorship" (a mistake he also made in the oral argument in the Texas and Florida NetChoice cases). Alito is also inconsistent in taking a strong stance against coercion of social media firms here, while seemingly being open to it in the Texas and Florida cases. But most of his critique of the majority in this case is on target.
There is a broader problem here that goes far beyond the details of this specific case. Unlike direct government censorship, censorship through indirect coercion of media usually involves veiled threats and sometimes subtle communications whose meaning depends on context. There often will not be "smoking gun" evidence directly demonstrating a clear and simple link between the government's pressure campaign and the actions of media firms restricting speech. That's especially likely in situations where firms also have content restrictions of their own - as is true not only of "big tech" social media firms, but newspapers, websites, and TV and radio stations.
The same issue arises when it comes to whether a campaign of coercion is "ongoing" or not. Government officials involved in such efforts can make implicit, but clearly understood, threats without spelling them out in so many words. That's particularly true if the relevant media platforms are subject to extensive government regulation, and officials therefore have many potential pressure points against them.
If courts require very strong evidence of causal links plus an "ongoing" campaign just to get standing, government agencies can use that procedural requirement to escape judicial scrutiny of even very extensive indirect censorship. That problem is likely to become more severe as agencies figure out the relevant standing rules, and try to tailor their threatening communications to firms in ways that exploit them. For example, instead of explicitly demanding a ban on the expression of X opinions, they could just demand more aggressive and systematic application of the social media firms' own supposed rules. And, as in some of the communications in this case, they could be vague about the exact scope of the demands, and penalties for refusal. Similarly, they can be vague about the exact time frame during which their demands apply, thereby making it hard to get standing for relief against future pressure.
In fairness, as I have previously emphasized, there are inherent difficulties in these types of cases in differentiating between threats of coercion and mere voluntary suasion and cooperation. Government officials should be free to criticize speech on social media (and elsewhere) and urge firms to change their policies voluntarily. But these types of evidentiary issues make it all the more important to avoid shutting down potentially meritorious legal claims at an early stage, for questionable procedural reasons.
In these types of cases, it is important for courts to pay proper attention to context. As I explained in an earlier post about this litigation:
Importantly, the people making these statements were officials whose superiors had the power to carry out at least some of these veiled threats. The evidentiary and interpretive issues here are…. similar to those that sometimes arise when organized crime organizations…. engage in extortion or protection rackets….
It's noteworthy that the record analyzed by the [Fifth Circuit] doesn't seem to include any examples of direct, unequivocal threats, such as "If you don't take down X, I will inflict punishment Y." But as the [Fifth Circuit] recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because "that's one of the easy, low-bar things you can do to make people like me and the Don happy," the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material [as they in fact did].
Interestingly, the Court was much more sensitive to considerations of context in its recent decision in NRA v. Vullo, which addressed similar indirect coercion by New York state officials. There, a unanimous ruling rightly took account of statements by Governor Andrew Cuomo and other officials indicating that seemingly neutral actions against firms doing business with the NRA were in fact part of an unconstitutional effort to punish the NRA's speech.
Because of the ideological valence of the speech at issue in this case (mostly anti-vaccination and anti-Covid restriction speech), today's ruling is likely to be cheered by the left and decried by the right. I myself am no fan of anti-vaxxerism, though I have more sympathy with critiques of Covid-era lockdowns, mask mandates, and migration restrictions. But the standing requirements adopted by the Court could just as easily be used by right-wing officials to target left-wing speech, as vice versa.
Donald Trump has promised to use the power of the federal government to punish his critics, if he returns to power. Even if you are confident that Biden would not abuse the standing restrictions adopted by the Court in this case to shield future censorship efforts, I bet you don't have similar faith in Trump.
The Court's highly restrictive approach to standing in Murthy might be justified if it were clearly required by the Constitution. But the entire doctrine of standing is a highly questionable judicial invention, with little in the way of roots in the text and original meaning of the Constitution.
Even if there must be some standing constraints on lawsuits, the specific standards of causation and proof of potential future harm addressed by the Court here are, at best, judicially created precepts for the more efficient enforcement of constitutional requirements. They are not themselves mandated by the Constitution, but rather rules of "constitutional construction." The Court would do well to modify those rules to reduce the risk of giving the government a tool to shield severe violations of free speech rights from judicial review.
UPDATE: My former student Ben Sperry, an expert on government regulation of the internet, has posted an insightful critique of today's ruling here. He also notes a possible silver lining, in the form of agreement among the justices that private firms, including social media platforms. have a First Amendment right to make content moderation decisions. That bodes well for the NetChoice cases!
