Petitioners Urge SCOTUS to ‘Clarify’ Standing on First Amendment ‘Injury’

The U.S. Supreme Court docketed as case number 23-1062 the cert petition of three former Twitter users. The petitioners are seeking review of the 6th U.S. Circuit Appeals Court’s judgment affirming 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 (see 2403270011), said a text-only docket entry Friday.

The Twitter accounts of petitioners Mark Changizi, Michael Senger and Daniel Kotzin were terminated or suspended by the platform for publishing COVID-19 tweets that were deemed to have run counter to HHS’ pandemic public information policy. They allege the same First Amendment government censorship claims as the five individual plaintiffs in Murthy v. Missouri (docket 23-411) who seek to uphold the social media injunction against the government.

Their petition tethers their case closely to the outcome in Murthy, which was argued March 18 and is expected to be decided by late June (see 2403180051). The injunction that’s at stake in Murthy bars officials from the White House and four federal agencies from coercing or significantly encouraging social media companies to moderate their content. The injunction is stayed pending SCOTUS resolution of the case.

Assuming that SCOTUS finds standing for the five individual plaintiffs in Murthy, said the petition, it should grant the Changizi petitioners cert, vacate the 6th Circuit’s decision on lack of standing and remand the case for further consideration on the standing question. 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.

SCOTUS review is warranted to resolve a split among the appellate courts, said the petition. The 6th Circuit held that the petitioners “lack standing to bring a First Amendment claim against federal officials for inducing a social-media platform to censor their posts,” it said.

That holding “directly conflicts” with the 5th Circuit’s decision in Missouri v. Biden, the case that became Murthy when SCOTUS granted the government cert to challenge the 5th Circuit’s injunction affirmance, said the petition. The 5th Circuit found “that similarly situated social-media users there have standing to bring the same First Amendment claim against the same officials for remarkably similar censorship conduct,” it said.

The 6th Circuit distinguished its holding from the 5th Circuit's in a footnote that “mistakenly asserts” that Missouri addressed government-induced social media censorship on a more comprehensive scale, not based on actions with respect to individual plaintiffs, said the petition.

The government thinks the “easiest way” for SCOTUS to resolve Murthy is on standing, Brian Fletcher, principal deputy U.S. solicitor general, told the court in rebuttal during March 18 oral argument. To the extent that SCOTUS does get to the merits, “we'd urge you to make clear that government officials do not violate the First Amendment” when they flag false information “on matters of public concern the way the president and the surgeon did,” he said.

The First Amendment “is a critical bulwark against government coercion, and that's important,” said Fletcher. But it’s also important that Article III courts “stay within the bounds of Article III and don't enjoin or chill legitimate and productive interactions between the government and the public,” he said.