SCOTUS Rejects White House Social Media Injunction for Lack of Standing

The 5th U.S. Circuit Appeals Court was "wrong" when it affirmed a district court’s “sweeping” preliminary injunction that barred dozens of White House officials and four federal agencies from coercing social media platforms to moderate their content, the U.S. Supreme Court said in a 6-3 decision Wednesday in Murthy v. Missouri (docket 23-411).

Justice Amy Coney Barrett delivered the majority opinion. Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson joined the majority. Justice Samuel Alito filed a dissenting opinion, and Justices Clarence Thomas and Neil Gorsuch joined in Alito's dissent.

In a case debated for months, often along party and ideological lines (see 2402100002), Wednesday's majority aligned former President Donald Trump's SCOTUS nominees, Barrett and Kavanaugh, with the court's liberal wing. The decision came a week shy of the one-year anniversary of the injunction imposed in the Western District of Louisiana by Judge Terry Doughty, a Trump appointee (see 2307050042)

To establish standing, the plaintiffs, including the Republican attorneys general of Louisiana and Missouri and five social media users, needed to demonstrate a substantial risk that, in the near future, they will suffer an injury that's traceable to a government defendant “and redressable by the injunction they seek,” Barrett’s opinion said: “Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.” With the plaintiffs lacking standing, “we therefore lack jurisdiction to reach the merits of the dispute.”

The primary weakness in the record of past social media restrictions “is the lack of specific causation findings with respect to any discrete instance of content moderation,” the opinion said. The district court made none, nor did the 5th Circuit, “which approached standing at a high level of generality.”

Of the 5th Circuit’s findings that the platforms’ censorship decisions were likely attributable to their reluctance to risk the consequences of refusing to adhere to the government’s directives, “we reject this overly broad assertion,” the opinion said. The platforms moderated similar content long before any of the government defendants “engaged in the challenged conduct.”

The platforms, acting independently, had strengthened their preexisting content-moderation policies before the government defendants were involved, said the opinion. For example, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform.

The platforms continued exercising their independent judgment “even after communications with the defendants began,” said the opinion. On several occasions, the platforms explained that White House officials flagged content that didn’t violate company policy, it said. The platforms also didn’t speak with only the defendants about content moderation, it said. They also “regularly consulted with outside experts,” it said.

'Threshold Showing' Missing

The 5th Circuit also erred when it treated “the defendants, plaintiffs, and platforms each as a unified whole,” the opinion said. “Here, for every defendant, there must be at least one plaintiff with standing to seek an injunction,” it said. “This requires a certain threshold showing” that a particular defendant “pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic,” it said.

Heeding those conditions “is critically important in a sprawling suit like this one,” said the opinion. The plaintiffs “faced speech restrictions on different platforms, about different topics, at different times,” it said: “Different groups of defendants communicated with different platforms, about different topics, at different times.” Even where the plaintiff, platform, time, content and defendant “line up,” the links “must be evaluated in light of the platform’s independent incentives to moderate content,” it said.

The plaintiffs, without any “concrete link” between their injuries and the defendants’ conduct, “ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” the opinion said. The Supreme Court’s standing doctrine “prevents us” from exercising such general legal oversight of the other branches of government, it said. “We therefore reverse” the 5th Circuit's judgment and remand the case to the district court "for further proceedings consistent with this opinion,” it said.

Alito, in his dissent, said that if the lower courts’ assessment of the “voluminous record” is correct, “this is one of the most important free speech cases” to reach the Supreme Court in years. Freedom of speech serves many valuable purposes, “but its most important role is protection of speech that is essential to democratic self-government,” it said.

“I assume that a fair portion of what social media users had to say about COVID-19 and the pandemic was of little lasting value,” Alito wrote. “Some was undoubtedly untrue or misleading, and some may have been downright dangerous,” he said: “But we now know that valuable speech was also suppressed.” That’s what “inevitably happens when entry to the marketplace of ideas is restricted,” he said.

The record “amply shows traceability,” Alito's dissent said. But the court’s majority reached the opposite, “regrettable” conclusion “by applying a new and heightened standard,” he said.

Decision Panned, Praised

The decision “is unfortunate and disappointing,” emailed the office of Louisiana AG Liz Murrill (R). The Supreme Court’s majority gave “a free pass to the federal government to threaten tech platforms into censorship and suppression of speech that is indisputably protected by the First Amendment,” it said. As such, it “waves off the worst government coercion scheme in history,” it said.

Similarly, Missouri AG Andrew Bailey (R) said: “The record is clear: the deep state pressured and coerced social media companies to take down truthful speech simply because it was conservative.” Wednesday's ruling “does not dispute that,” he said: “My rallying cry to disappointed Americans is this: Missouri is not done. We are going back to the district court to obtain more discovery in order to root out Joe Biden’s vast censorship enterprise once and for all.”

A DOJ spokesperson declined comment.

The decision “rightly preserves the government’s ability to work with social media companies to address the spread of disinformation and dangerous content online," said Connecticut AG William Tong (D). "This is all-hands-on-deck kind of work," he said. "We need governments and platforms working closely together to root out violent content, cyberbullying, child predators, and deeply damaging disinformation regarding public health, our democracy, and more.”

The decision “underscores the importance of protecting online services’ First Amendment right to editorial judgment,” said NetChoice Vice President-General Counsel Carl Szabo. “We are pleased the majority opinion recognized that platforms have ‘independent incentives to moderate content’ separate from government influence.”

The ruling “checks a dangerous overreach by the lower courts,” said Ishan Mehta, director of the Common Cause Media and Democracy Program. It “turned back a serious threat to public safety as well as to our very system of democratic government,” he said.

SCOTUS dismissed this “specious” case for lack of standing, “in part because neither the states nor the individual social media users were able to prove -- or even allege -- that government agencies’ or officials’ actions caused them any injury,” said Public Knowledge Policy Director Lisa Macpherson. “They weren’t even able to prove the alleged government coercion ever happened,” she said. “We applaud this decision, which also closes the path for other plaintiffs to make similar baseless claims.”