Cert Petition Seeks SCOTUS Clarity on Article III Standing in First Amendment Cases

Mark Changizi, Michael Senger and Daniel Kotzin seek U.S. Supreme Court review of the 6th U.S. Circuit Court of Appeals' judgment affirming the district court’s finding that they lacked Article III standing to bring First Amendment social media censorship claims against the Department of Health and Human Services, Surgeon General Vivek Murthy and Health and Human Services Secretary Xavier Becerra, said their cert petition Tuesday.

Assuming that SCOTUS finds standing for the individual plaintiffs seeking to uphold the social media injunction against the government in Murthy v. Missouri (docket 23-411), it should grant cert petition, vacate the 6th Circuit’s decision below and remand the case for further consideration on the standing question in light of the SCOTUS ruling in Murthy, said the petition. SCOTUS alternatively should grant review “to clarify the pleading standard necessary to allege a First Amendment injury by government for third-party censorship,” it said.

The petitioners are former Twitter users whose accounts were terminated or suspended for publishing COVID-19 tweets that ran counter to HHS policy. They allege the same First Amendment government censorship claims as the individual plaintiffs in Murthy, said their petition.

The 5th Circuit held that the individual plaintiffs in Murthy had standing to bring their First Amendment claim against the government, said the petition. But the 6th Circuit held that the “similarly situated” petitioners in this case “lacked standing to sue the same officials for the same First Amendment-violating conduct,” it said.

The government agrees with the petitioners that the standing question in this case “is identical to the question presented with respect to the individual plaintiffs in Murthy,” said the petition. Because this case is “on all fours” with Murthy, SCOTUS “should at least hold this petition until it decides Murthy,” it said. Murthy was argued March 18 (see 2403180051).

The 6th Circuit is “the only entity that found any distinction between this case and Murthy,” said the petition. But that’s only because it “erroneously and inexplicably believed” that Murthy didn’t involve individual plaintiffs, even though the 5th Circuit’s opinion in that case “devoted many pages to analyzing the standing of individual plaintiffs,” it said. The states of Missouri and Louisiana are the individuals’ co-plaintiffs in Murthy.

The 6th Circuit’s error “did not end there,” said the petition. It also “misapplied the pleading standard needed” to establish standing by requiring the petitioners to supply nonpublic government communications that they couldn’t have had access to before there was an opportunity for discovery, it said. If that were the pleading standard, “then no allegation of censorship based on non-public communications could ever survive a motion to dismiss,” it said.

When “copious” nonpublic communications targeting social media platforms came to light through voluntary disclosure, congressional subpoena and discovery in Murthy, the 6th Circuit refused to consider it before ruling that the petitioners’ allegations of non-public communications were “implausible,” said the petition. The 6th Circuit’s ruling “demonstrates considerable confusion regarding the pleading standard for claims of government-induced censorship by social media platforms," it said. SCOTUS should grant cert “to clarify this vital question of First Amendment law,” it said.