Supreme Court Supports Censorship By Proxy
Supreme Court Wrap-Up In Murthy v. Missouri, 603 U.S._(2024)
Description
Episode #97
Today, the Supreme Court issued its opinion in the Murthy v. Missouri case. Unfortunately this case came out exactly as I had predicted in my past Supreme Court Roundup videos covering this case at both the cert petition stage and following the oral arguments that were heard before the Court. In this case the Court threw out a lawsuit seeking to limit the government’s ability to communicate with social media companies about their content moderation policies. With 6 justices voting the reverse the fifth circuit, and 3 that would have affirmed the lower court. the court ruled that that the plaintiffs did not have a legal right, known as standing, to bring their lawsuit.
Today, we are going to very briefly review the important facts in Murthy, followed by my own summary of the opinion of the Court. To truly understand this case I would encourage people to go back and watch my past videos and/or read the past articles I have published on this case, since we have too much new information to get to give you give a comprehensive breakdown of the history. Furthermore, while I will be providing a summary that will cover the crucial details of the 68 page opinion of the court, I would strongly implore everyone to take the time to read the full opinion of the court for yourself. My articles and videos, as well as a copy of the opinion of the court and other relevant documentation can all be found on the show notes pages for this episode, as always, linked in the video description.
Following our basic summary and analysis I will spend the remainder of the video discussing the likely and the important consequences of this case moving forward on a number of issue, including Article III standing, the first amendment and jawboning, which is defined as:
Jawboning: a term used to describe informal efforts by government officials to persuade someone outside the government to take action.
Or as I would define it, censorship by proxy.
Let’s start with a brief look at the case background:
Under their longstanding content-moderation policies, social-media platforms have taken a range of actions to suppress certain categories of speech, including speech they judge to be false or misleading. In 2020, with the outbreak of COVID–19, the platforms announced that they would enforce these policies against users who post false or misleading content about the pandemic. The platforms also applied misinformation policies during the 2020 election season. During that period, various federal officials regularly spoke with the platforms about COVID–19 and election-related misinformation. For example, White House officials publicly and privately called on the platforms to do more to address vaccine misinformation.
Surgeon General Vivek Murthy issued a health advisory that encouraged the platforms to take steps to prevent COVID–19 misinformation “from taking hold.” The Centers for Disease Control and Prevention alerted the platforms to COVID–19 misinformation trends and flagged example posts. The Federal Bureau of Investigation and Cybersecurity and Infrastructure Security Agency communicated with the platforms about election-related misinformation in advance of the 2020 Presidential election and the 2022 midterms.
Respondents are two States and five individual social-media users who sued dozens of Executive Branch officials and agencies, alleging that the Government pressured the platforms to censor their speech in violation of the First Amendment.
A federal judge in Louisiana ruled for the plaintiffs. U.S. District Judge Terry Doughty agreed that federal officials had violated the First Amendment by “coercing” or “significantly encouraging” social media platforms’ content moderation decisions. Doughty issued an order that limited the extent to which the White House and several other government agencies could communicate with social media platforms.
The U.S. Court of Appeals for the Fifth Circuit would largely uphold the ruling:
The court held that both the state plaintiffs and the individual plaintiffs had Article III standing to seek injunctive relief. On the merits, the court held that the Government entities and officials, by “coerc[ing]” or “significantly encourag[ing]” the platforms’ moderation decisions, transformed those decisions into state action.
Following the Fifth Circuit decision the Biden Administration asked the Supreme Court to intervene. The Judges would say the order of the District Court until they could review the dispute.
The Court would hold:
Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant. Pp. 8– 29.
Article III Standing (what the fuck is that)
Since the majority opinion in this case turns on a lack of standing lets briefly discuss the elements that the party to a first amendment related case such as this would have to meet to have standing.
Eugene Volokh wrote an excellent article on Volokh Conspiracy called “What does Murthy v. Missouri Tell Us About First Amendment Law” that answers this very question:
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.
~Eugene Volokh, “What does Murthy v. Missouri Tell Us About First Amendment Law”1
Keep those elements in mind as we read through the Judgement of the court:
The court found Article III’s “case or controversy” requirement is “fundamental” to the “proper role” of the Judiciary. Raines v. Byrd, 521 U. S. 811, 818. A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue,” ibid.—i.e., that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling,” Clapper v. Amnesty Int’l USA, 568 U. S.
Here, the plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. Instead, they seek to enjoin the Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.The one-step-removed, anticipatory nature of the plaintiffs’ alleged injuries presents two particular challenges. First is the principle that a federal court cannot redress “injury that results from the independent actions of some third party not before the Court. Second, because the plaintiffs request forward-looking relief they must face a real and repeated threat of injury. 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.
The plaintiffs’ primary theory of standing involves their “direct censorship injuries.” Pp. 10–26. The Court first considers whether the plaintiffs have demonstrated traceability for their past injuries. Because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value.
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. And while the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. Additionally, the plaintiffs failed, by and large, to link their past social media restrictions with the governmental defendants communication with the platform.
Furthermore, 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. The plaintiffs who have not pointed to any past restrictions likely traceable to the Government defendants.
The plaintiff’s also assert a “right to listen” theory of standing. The parties argue the first amendment protects their interest in reading and engaging with the content of other speakers on social media.
The court found this theory, as they put it, “startlingly broad”. The court contends it would grant all social media users the right to sue over someone else’s censorship, as long as they merely claim an interest in that person’s speech.
While the Court has recognized a “First Amendment right to receive information and ideas,” the Court has identified a cognizable injury only where the listener has a specific and concrete connection to the speaker. Kleindienst v. Mandel, 408 U. S. 753, 762. Because they could not point to specific instances of content moderation that caused them identifiable harm they have failed to establish an injury that is suitably concrete and particularized Lujan v. Defenders of Wildlife, 504 U. S. 555, 560.
So, plugging the Court’s Judgement back into our model for requirements of standing the Court essential concludes:
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.
Because this case failed to meet standing requirements, the Court didn't actually reach the merits, meaning it didn't make any ruling on the substance of First Amendment free speech doctrine.
Dissent
On the other side, Samuel Alito would issue a dissent joined by Justices Thomas and Gorsuch, in which they make a case for why they would have granted Article III standing.
In their dissent, Alito would make the point that, at the very least, one of the parties to this case, namely Jill Hines had met the requirements for standing. With Justice Alito saying the Court could confidently connect the dots between the injury suffered and the relief sought by Ms. Hines. Something Alito points out is how the confusion of having multiple defendants, including both individual citizens and the State of Missouri suing in its sovereign capacity, cause the issue of standing for any individual party to become scattershot. I would further argue it’s apparent that the best case for Hines's standing was not made with as much care and factual detail in the briefs as it was by Justice Alito's dissent.
The dissent would state (and quite correctly in my opinion) that that the case could be “one of the most important free speech cases to reach” the Supreme Court “in years,” precisely because Alito would have ruled both that the plaintiffs had standing to bring their lawsuit and that “the White House coerced Facebook into censoring” at least one plaintiff’s speech.
Despite the fact this case never gave any substantive ruling on the issue of First Amendment free speech doctrine, and the court certainly did not rule that what the government did here was legal. All the same, 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.
Furthermore, Justice Alito's dissent succinctly summarized the sustained campaign of brutal and vicious threats made by the Biden Administration against Facebook during the Covid crisis from 2021 to 2022.
Biden threatened to breakup Facebook with an antitrust suit if it did not greatly censor vaccine skeptic speech. Facebook meekly complied because they had bigger fish to fry.
This was a clear violation of the First Amendment by the Biden Administration.
It was a gross misuse of presidential power that, at the time, was a High Crime or Misdemeanor.
In my oral arguments video for this case I went through the court documents from the discovery process of their case as it had come from the District Court and I read out some of the most egregious examples. If you’re unfamiliar with those particulars, you should definitely go check out that video because it’s truly, truly shocking at just how threatening and coercive the government got in their pressure on these social media companies.
Bigger Consequences
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.
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.
However, there is one way in which this case can be seen as encouraging, and that is in regards to the still pending NetChoice cases that are before the Court. This decision demonstrates an agreement among the Justices that private firms, such as social media companies have a first amendment right to make content moderation decisions augers well for a correct ruling in the Netchoice cases.
Case Brief
Docket No. 23-411
Lower Court: United State Court Of Appeals For The Fifth Circuit
Question Presented: . . . the government respectfully suggests the following questions presented: (1) Whether respondents have Article III standing; (2) Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) Whether the terms and breadth of the preliminary injunction are proper.
The application for stay presented to JUSTICE ALITO and by him referred to the Court is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, case No. 3:22–cv–01213, as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023, case No. 23–30445, 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. The stay shall terminate upon the sending down of the judgment of this Court.
Holding: Respondents — two states and five individual social media users who sued executive branch officials and agencies, alleging that the government pressured the platforms to censor their speech in violation of the First Amendment — lack Article III standing to seek an injunction.
Judgement: Reversed and remanded, 6-3, in an opinion by Justice Barrett on June 26, 2024. Justice Alito filed a dissenting opinion, in which Justices Thomas and Gorsuch joined.
Links
Murthy v Missouri (Docket No. 23-411)
Missouri v Biden (2023)
Missouri v. Biden, No. 22-cv-1213 (W.D. La., July 4, 2023) Preliminary Injunction
Missouri v. Biden, Civil Action 3:22-cv-1213 (W.D. La. Jul. 10, 2023)
Other Resources
What Does Murthy v. Missouri, Today's Government/Social Media Case, Tell Us About First Amendment Law? (Eugene Volokh)
Supreme Court should end government and Big Tech collusion (By: Ilya Shapiro, Washington Examiner)
28 U.S. Code § 1732 - Record made in regular course of business; photographic copies
44 U.S. Code § 3106 - Unlawful removal, destruction of records
36 CFR, part 1230 - Unlawful or accidental removal, defacing, alteration, or destruction of records
18 U.S. Code § 641 - Public money, property or records
18 U.S. Code § 2071 - Concealment, removal, or mutilation generally
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Volokh, Eugene. What Does Murthy v. Missouri, Today’s Government/Social Media Case, Tell Us About First Amendment Law? (2024, June 26). Reason.com. https://reason.com/volokh/2024/06/26/what-does-murthy-v-missouri-todays-government-social-media-case-tell-us-about-first-amendment-law/