Murthy Decision Should Not Foreclose Cases Against Actual First Amendment Violations

The Supreme Court on Wednesday was 1-and-1, with one good decision, in Murthy v. Missouri, and one doozy in Snyder v. US, where it somehow read a statute criminalizing corruption to… not actually criminalize corruption. But this post is about the one that, happily, the Court got right. Not just because it got the result right, and in rejecting the plaintiffs’ specious First Amendment claims ended up vindicating the platforms’. But also because this iteration of the Supreme Court often struggles with adhering to certain supposedly timeless jurisprudential fundamentals. And in this case they seemed to get them right, which will matter in other cases where there are meritorious First Amendment interests at stake.

Cutting against this favorable view of the decision, however, is the fair concern that the Court never spoke to any of the First Amendment issues implicated by the litigation, focusing instead exclusively on the plaintiffs’ standing, as well as the concern that by denying the plaintiffs standing the Court may have made it harder to bring First Amendment challenges. These are both credible concerns, but ultimately probably not born out.

With regard to the First Amendment, it is true that the decision never directly addressed the constitutionality of potentially jawboning acts by the government. But it also didn’t say anything to unilaterally foreclose all such claims, which has led some to speculate about problems this ruling could cause. While the jawboning claims here were frivolous, it’s possible that in some future case the government might really go too far to affect platforms’ moderation policy and thus violate the First Amendment rights of their users. But if such claims might need to be brought, we’re hardly in the dark; instead we now have the decision from earlier this month in the NRA v. Vullo case to provide updated, yet still historically consistent, precedent setting forth that government officials still can’t pressure a third party as a means of censoring another speaker it couldn’t constitutionally silence itself.

The Court also never directly addressed how the injunction allowed by the Fifth Circuit chilled Internet platforms’ First Amendment rights, both to moderate as they freely would choose, and to even freely speak to their own government officials. But the decision does seem to implicitly accept that these platform rights exist, particularly in how the decision kept referencing that platforms engaged in moderation practices based on what they judged needed it. See for instance:

With their billions of active users, the world’s major social-media companies host a “staggering” amount of content on their platforms. Twitter, Inc. v. Taamneh, 598 U. S. 471, 480 (2023). Yet for many of these companies, including Facebook, Twitter, and YouTube, not everything goes. Under their longstanding content-moderation policies, the platforms have taken a range of actions to suppress certain categories of speech. They place warning labels on some posts, while deleting others. They also “demote” content so that it is less visible to other users. And they may suspend or ban users who frequently post content that violates platform policies. For years, the platforms have targeted speech they judge to be false or misleading… [p.2]

Or from later, referencing Facebook’s “independent judgment,” which surely must be constitutionally protected independent judgment:

By acknowledging the real possibility that Facebook acted independently in suppressing Hines’ content, we are not applying a “new and heightened standard,” as the dissent claims. Post, at 20. The whole purpose of the traceability requirement is to ensure that “in fact, the asserted injury was the consequence of the defendants’ actions,” rather than of “the independent action” of a third party. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 42, 45 (1976). [p.20]

Or this bottom line, saying that platforms could still make the decisions it made, and would be considered independent, even when they were made in the wake of discussions with government officials.

But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion. The platforms are “not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.” Lujan, 504 U. S., at 569 (plurality opinion); see also Haaland v. Brackeen, 599 U. S. 255, 293–294 (2023). [p.26]

In fact, even Justice Alito’s dissent seems to acknowledge that these platform rights exist (and in a way we’ve suggested they could be implicated by actual jawboning pressure):

[I]nternet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. 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.

So while we wait for the decision in the NetChoice cases there still isn’t clear Supreme Court precedent as to whether platforms definitely have First Amendment rights in how they moderate, for the first time there is now at least some language to point to in any future cases where those platform rights might need to be defended to support the idea that they indeed do.

Which leads to the second area of potential concern with the decision, which is that instead of ruling on the First Amendment substance, the decision focused entirely on standing. And by not finding that these plaintiffs had any, the concern is that standing doctrine may have been narrowed, which wouldn’t be good for future First Amendment challenges. It’s why we don’t share the concern that there is anything wrong with the challenge in 303 Creative, where prospective injury was enough to prompt judicial review. We’ve also supported broad standing in the constitutional challenge of FOSTA, where it was ultimately found, although the challenge was later denied on the merits. Standing, after all, does not presuppose victory on the merits – it’s just about getting the legal challenge through the courthouse door.

But the decision here does not really close the door on these challenges. It largely fell back on established precedent to discuss what would need to be plead by someone pressing this sort of First Amendment claim, stressing in particular the traceability of the alleged injury, and, in the case where injunctions were being sought, evidence that any injury was likely to continue into the future.

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 sweeping preliminary 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 in junction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction. [p.1]

The basic failure the Court highlighted was that the plaintiffs could not show, not even with the discovery that it had, that the injury it alleged – having had their speech moderated on a platform – was due to the government having caused it, when it was the actions of the platform – notably, an “independent decisionmaker” (see p.9) – that suppressed it.

The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. [p.11]

It did not help that this case was a mess, with multiple plaintiffs, multiple platforms, and multiple government agencies involved.

The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole. Our decisions make clear that “standing is not dispensed in gross.” TransUnion LLC v. Ramirez, 594 U. S. 413, 431 (2021). [p.13]

Nor did it help that the result of this litigation strategy was a voluminous, near-impenetrable record, and one that could not show a line between an alleged injury by any plaintiff and a specific defendant having taken a specific act that caused it.

It is especially important to hold the plaintiffs to their burden in a case like this one, where the record spans over 26,000 pages and the lower courts did not make any specific causation findings. As the Seventh Circuit has memorably put it, “[j]udges are not like pigs, hunting for truffles buried [in the record].” Gross v. Cicero, 619 F. 3d 697, 702 (2010) (internal quotation marks omitted). [p.20]

The plaintiffs treat the defendants as a monolith, claiming broadly that “‘the governmen[t]’” continues to communicate with the platforms about “‘content-moderation issues.’” Brief for Respondents 29 (quoting 83 F. 4th, at 369) [p.22]

It seems pretty obvious that the litigation here was intended to fish for the broad injunction the lower courts had awarded, and it’s similarly pretty obvious by this decision that the Supreme Court has no patience for this type of throw-lots-of-provocative-complaints-at-the-wall-and-hope-something-sticks litigation.

The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole. Our decisions make clear that “standing is not dispensed in gross.” TransUnion LLC v. Ramirez, 594 U. S. 413, 431 (2021). That is, “plaintiffs must demonstrate standing for each claim that they press” against each defendant, “and for each form of relief that they seek.” [p.13]

This case was deliberately designed as a DDOS-attack against good jurisprudence, hoping with enough plaintiffs, defendants, and platforms involved courts (especially those in the 5th Circuit…) would be inclined to accept any provocative allegations as true. While it managed to work at the outset, it did not get past the Supreme Court.

But litigation seeking a remedy for an aggrieved plaintiff, tied to an actual record actually supporting the complaint, that carefully spells out how the court’s remedy, applied to a defendant, would redress an injury could still well be welcomed by the courts, just as it was before. But this standing decision itself stands to forestall facially frivolous litigation, and if it can do that, especially litigation that affects others’ speech rights, then it will be a win.