Standing and the related “traceability” issue doom Murthy v. Missouri, as the Supreme Court votes 6-3 to kick the Internet censorship can down the road
The Supreme Court today punted on Internet censorship, sending free speech advocates back to the drawing board while Joe Biden’s White House celebrated.
“The Supreme Court’s decision,” said White House press secretary Karine Jean-Pierre, “helps ensure the Biden administration can continue our important work with technology companies to protect the safety and security of the American people.”
That “important work,” of course, includes White House officials sending emails to companies like Facebook, with notes saying things like “Wanted to flag the below tweet and am wondering if we can get moving on having it removed ASAP.” The Supreme Court sidestepped ruling on the constitutionality of this kind of behavior in the Murthy v. Missouri case with one blunt sentence: “Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.”
In a 6-3 decision authored by Justice Barrett, the Supreme Court concluded that none of the plaintiffs in Murthy v. Missouri had Article III standing to seek an injunction barring federal officials from seeking to influence content-moderation decisions on social media platforms. While the decision divided the Court, and Justice Alito wrote a lengthy dissent (joined by Justices Gorsuch and Thomas), Murthy appears to be a narrow decision, though one that sends a message to lower courts and litigants.
Here is Justice Barrett’s summary of the opinion:
The plaintiffs in this case are people who allege that federal agencies (particularly the White House, the Surgeon General, and the CDC) pressured social media firms like Facebook and Twitter to bar posts about the Covid pandemic, vaccines, and some other issues, which the agencies regarded as harmful “misinformation.” The plaintiffs argue some of their posts were taken down or barred as a result. The lower courts ruled in favor of the plaintiffs on some of their claims, because they found extensive evidence that federal agencies did not just engage in persuasive “jawboning,” but threatened the social media firms with coercion, if they refused to comply. As the Fifth Circuit decision in the case put it: