The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

Free Speech

What Does Murthy v. Missouri, Today's Government/Social Media Case, Tell Us About First Amendment Law?

Very little.

|

Say you think the government is pressuring bookstores to take your book off their shelves. You want to get an injunction ordering the government to stop doing that. You acknowledge that the bookstores didn't violate the First Amendment, because the First Amendment doesn't bind the bookstores themselves. But you're arguing that the government violated the First Amendment by pressuring bookstores this way.

To get the injunction, you'd generally need to show four things (to oversimplify somewhat):

  1. Traceability of past injuries: The bookstores have in the past taken your books off the shelves because of government pressure and not just because they concluded on their own that they didn't want to carry the books after all.
  2. Substantial risk of future injury: The government is likely to act in a way that injures you in the future (since you're seeking an injunction against future action).
  3. Redressability: Issuing the injunction in this case is likely to prevent the harm, because the bookstores—freed from the government pressure—are likely to keep your books on the shelves.
  4. Merits: The governmental pressure indeed violates the First Amendment, for instance because it coerces the bookstores rather than just persuading them.

Technically, past injuries (1) are just viewed as an important predictor of future injuries (2). But they are an important predictor: To quote today's Murthy v. Missouri, "[i]f a plaintiff demonstrates that a particular Government defendant was behind" a "past … restriction" on plaintiff's speech, "it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant. Conversely, if a plaintiff cannot trace her past injury to one of the defendants, it will be much harder for her to make that showing. In the latter situation, the plaintiff would essentially have to build her case from scratch, showing why she has some newfound reason to fear that one of the named defendants will coerce" the bookstore (in our hypo) to take down her books in the future.

If you show these things, you may prevail. We know that (again, oversimplifying a bit) because these are basically the facts of Bantam Books, Inc. v. Sullivan (1963), where the Court concluded that the government was indeed unconstitutionally pressuring bookstores—through threat of prosecution for obscenity—to remove various books published by Bantam Books. It's also structurally similar, though not identical, to the theory that the plaintiffs urged in NRA v. Vullo (note that I was one of the NRA's counsel in that case). And it was structurally similar to the theory that the plaintiffs urged in Murthy v. Missouri, decided by the Court this morning; the Murthy plaintiffs were arguing that the government was unconstitutionally pressuring social media platforms to remove certain posts about COVID, elections, and other matters.

In Murthy, though, the Court's majority didn't reach a conclusion about whether the government was unconstitutionally pressuring social media platforms to remove various posts (item 4 above), because it rejected the case on "standing" grounds, basically a combination of items 1, 2, and 3 above. (The majority consisted of three conservatives—Justice Barrett, who wrote the opinion, and Chief Justice Roberts and Justice Kavanaugh—plus the three liberals, Justices Sotomayor, Kagan, and Jackson.)

  1. Traceability of past injuries: The majority concluded that almost all the plaintiffs in the case hadn't shown that their own particular speech was sufficiently likely to have been restricted because of government pressure, as opposed to because of the platforms' own independent decisions.
  2. Substantial risk of future injuries: As to one plaintiff, Jill Hines, the majority concluded, the matter was closer, but she (and the others) couldn't show that the government was likely to pressure platforms to restrict their speech in the future. "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."
  3. Redressability: And the plaintiffs couldn't show that an injunction would protect their speech, since there's no reason to think that even an injunction would lead the platforms to stop enforcing their policies (whether or not the policies were prompted by the government). "[T]he available evidence indicates that the platforms have continued to enforce their policies against COVID–19 misinformation even as the Federal Government has wound down its own pandemic response measures. Enjoining the Government defendants, therefore, is unlikely to affect the platforms' content-moderation decisions."

Now presumably the government's actions—whether or not one thinks they were unconstitutionally coercive—likely led the social media platforms to restrict someone's posts. After all, the government thought the platforms weren't doing enough to restrict certain kinds of users' speech (the evidence in the record of this case shows that), and the platforms did do something in response to the government's actions. Perhaps the platforms only did exactly what they would have done in any event; but that just seems unlikely.

But, as to item 1 (traceability of past injuries), there wasn't enough evidence to satisfy the majority as to these particular plaintiffs. As to item 2 (substantial risk of future injury), the Court didn't think it likely that there would be enough similar future action by the government. And as to item 3 (redressability), the Court thought speech like that of these particular plaintiffs would continue to be restricted by the platforms even if an injunction was issued.

Of course, this all leaves an interesting question about whether the majority or the dissent was right as to these standing questions. I leave that question for those who have studied standing law more closely than I have.

But we're really left learning very little new about First Amendment law here. In particular,

  • We don't know much more than before about when government pressure becomes unconstitutionally coercive. There are precedents on this; see this post, and of course NRA v. Vullo; but Murthy just doesn't add to these precedents. The dissenters (Justice Alito, joined by Justices Thomas and Gorsuch)—whose answers as to the three standing questions were different than the majority's—considered this question, and concluded that the government did indeed unconstitutionally pressure social media platforms. But the majority didn't discuss the matter.
  • We don't know whether the First Amendment forbids even noncoercive government "entangle[ment]" in platforms', bookstores', newspapers', etc. "decision-making processes," or perhaps other forms of "significant[] encourage[ment]" of those entities' actions. The Fifth Circuit had held that it does, but that decision has now been vacated, and the question remains open. (Note that even the dissenters don't discuss this, though some of the Court's precedents, such as Blum v. Yaretsky (1982), suggest in principle that such "entanglement" or "significant[] encourage[ment]" may sometimes call for constitutional scrutiny.)
  • We don't know whether the government's past actions in this case violated the First Amendment as to some speakers (even if not the plaintiffs in this case). The majority did say that "many" of the District Court's findings related to this were "clearly erroneous," see footnote 4 on pp. 17-18, though I don't think that disposes of all the claims of allegedly unconstitutional coercion.

Future cases might tell us something about these First Amendment matters. But not this case.