No Standing for Content Moderation Injunction

Authors: Nicole M. Jantzi, Paul M. Schoenhard, Morgan Kurst

On June 26, 2024, the Supreme Court issued a ruling in Vivek H. Murthy, Surgeon Gen., et al. v. Missouri, No. 23-30445 (Oct. 20, 2023), holding that all plaintiffs lack Article III standing to seek an injunction.

In 2023, the Attorneys General of Missouri and Louisiana, alongside five social media users, filed suit against the United States. The parties alleged that President Joe Biden and others in the Executive Branch pressured Twitter (now X), Facebook, and YouTube to censor information about the COVID-19 pandemic and the 2020 election, thereby transforming the otherwise-private companies into state actors illegally censoring the speech of United States citizens.

The Western District of Louisiana granted a preliminary injunction for the plaintiffs, holding that government officials' actions transformed private social media platforms' decisions to remove or flag certain posts into state action violating the First Amendment. The Fifth Circuit agreed, upholding parts of the district court's preliminary injunction, limiting the ability of the White House, FBI, CDC and Surgeon General to communicate with social media companies about content moderation. The United States petitioned the Supreme Court to review the decision, arguing that they were seeking to "inform and persuade rather than to compel," thereby staying within the bounds of the First Amendment.

On review, the Supreme Court was asked to consider whether the individual and state plaintiffs had established Article III standing to seek an injunction against any defendant.

Writing for the majority, Justice Barrett explained that to establish standing, plaintiffs must demonstrate a "substantial risk" that in the near future, at least one social media platform will restrict the speech of at least one plaintiff as a result of the actions of at least one government defendant, and that this action would be redressable by an injunction. The Court found plaintiffs could not show that each government defendant continued to engage in coercion and significant encouragement of social media platforms to censor posts by plaintiffs. Further, to establish a pattern of conduct that could continue in the near future, plaintiffs failed to confirm that the social media platforms suppressed plaintiff's posts, at least partly due to the government's pressure, and not the platforms' own content-moderation policies. And even if social media platform content moderation policies were tainted by governmental coercion, since plaintiffs did not sue any social media platform, the Court reasoned that the social media companies could continue to freely enforce their content moderation policies as they wish.

Plaintiffs brought forth a novel theory, a "right to listen," to establish standing that the Court also shut down. This theory would grant the right to sue over someone else's censorship. The Court denies a right so broad, especially when plaintiffs did not identify examples of people who were censored that plaintiffs had been unable to hear or follow.

In dissent, Justice Alito (joined by Justices Thomas and Gorsuch) focused on the causal connection alleged between the actions of government officials and the platforms' censorship of plaintiffs' expression.

The Murthy decision effectively forecloses challenges to government involvement in content-moderation decisions. But with decisions still forthcoming in Moody v. NetChoice and NetChoice v. Paxton, much remains unsettled with respect to platforms' content-moderation practices.

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