Rights Denied by Standing
- Arguably the most anticipated free speech case to make it to the Supreme Court in decades, people have been waiting for the decision in the case Murthy v. Missouri
- The states of Missouri, Louisiana, and five individuals sued multiple Biden administration officials for violations of free speech and the First Amendment.
- According to SCOTUS, government actors can coerce social media to censor ideas they don’t like, as long as they aren’t too specific about who to censor.
The First Amendment protects our right to petition the federal government for a redress of grievance. But what happens when said federal government tells you that you don’t have the right to petition? Because that’s exactly what happened when the Supreme Court decided the case Murthy v. Missouri.
Starting at the Beginning
Justice Barrett, writing the opinion, makes the court’s point very succinctly.
We begin—and end—with standing. At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute.
Murthy, Surgeon General, et al. v. Missouri et al.
Standing is the only thing the majority of the court even bothered considering? Then what is “standing”?
The legally protectible stake or interest that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.
So why does the court say that the states of Missouri and Louisiana, not to mention the five individuals, do not have a legally protectable interest in the Executive Branch coercing social media companies to censor information?
Under their longstanding content-moderation policies, social-media platforms have taken a range of actions to suppress certain categories of speech, including speech they judge to be false or misleading. In 2020, with the outbreak of COVID–19, the platforms announced that they would enforce these policies against users who post false or misleading content about the pandemic. The platforms also applied misinformation policies during the 2020 election season.
So far, so good. Social media platforms have their own content moderation policies. As private entities, they have the right to control what content is hosted on their platform. However, in 2020 things changed.
During that period, various federal officials regularly spoke with the platforms about COVID–19 and election-related misinformation. For example, White House officials publicly and privately called on the platforms to do more to address vaccine misinformation. Surgeon General Vivek Murthy issued a health advisory that encouraged the platforms to take steps to prevent COVID–19 misinformation “from taking hold.” The Centers for Disease Control and Prevention alerted the platforms to COVID–19 misinformation trends and flagged example posts. The Federal Bureau of Investigation and Cybersecurity and Infrastructure Security Agency communicated with the platforms about election-related misinformation in advance of the 2020 Presidential election and the 2022 midterms.
Murthy, Surgeon General, et al. v. Missouri et al.
Starting in 2020, several federal officials from multiple agencies, including the White House, encouraged these platforms to take steps to prevent misinformation about COVID-19 and multiple elections. Please keep this in mind, because it’s going to become very important as we continue through this decision.
Respondents are two States and five individual social-media users who sued dozens of Executive Branch officials and agencies, alleging that the Government pressured the platforms to censor their speech in violation of the First Amendment.
Murthy, Surgeon General, et al. v. Missouri et al.
Respondents allege that the federal government pressured social media companies to censor their speech. If you are taking notes, this is another important point we’ll get back to later. For now, let us continue with the majorities opinion on the case.
Following extensive discovery, the District Court issued a preliminary injunction. The Fifth Circuit affirmed in part and reversed in part. The court held that both the state plaintiffs and the individual plaintiffs had Article III standing to seek injunctive relief. On the merits, the court held that the Government entities and officials, by “coerc[ing]” or “significantly encourag[ing]” the platforms’ moderation decisions, transformed those decisions into state action. The court then modified the District Court’s injunction to state that the defendants shall not coerce or significantly encourage social-media companies to suppress protected speech on their platforms.
Murthy, Surgeon General, et al. v. Missouri et al.
Now we have an idea what the judges in the District and Circuit courts thought. They held that both the state and individual plaintiffs had shown standing to seek an injunction against actors in the federal government. This was based on the understanding that, by coercing and encouraging the platform to make certain moderation decisions, those decisions now became state actions. However, the Supreme Court majority did not agree.
Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.
How did the court come to such a decision?
Standing
Let’s start by looking at how the court analyzed the question of standing in this case.
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” The “case or controversy” requirement is “‘fundamental to the judiciary’s proper role in our system of government.’” …
A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue.”
Murthy, Surgeon General, et al. v. Missouri et al.
In order to hear a case, the court says that at least one of the plaintiffs must show they have standing, a valid claim of past or impending injury.
The plaintiffs’ primary theory of standing involves their “direct censorship injuries.” They claim that the restrictions they have experienced in the past on various platforms are traceable to the defendants and that the platforms will continue to censor their speech at the behest of the defendants. So we first consider whether the plaintiffs have demonstrated traceability for their past injuries.
Murthy, Surgeon General, et al. v. Missouri et al.
That term, “direct censorship injuries”, is really the crux of the matter. There is sufficient evidence that the individual plaintiffs had their content deprioritized and even banned, but could they directly link the actions of social media to the actions by government actors?
The plaintiffs fail, by and large, to link their past social-media restrictions and the defendants’ communications with the platforms.
Murthy, Surgeon General, et al. v. Missouri et al.
The court goes on to explain that, while the plaintiffs have had their content restricted, they could show no direct causal link to government actors. The link actions taken by the social media companies could simply be coincidental to the communications with government agencies, and therefore do not show that the injuries they suffered were caused by the federal government.
Examples of Government Interference
The court noted several instances when different federal entities communicated with, and even pressured, social media companies to suppress content. However, no one brought evidence that these agencies were specifically targeting the plaintiffs.
White House. In early 2021, and continuing primarily through that year, the Director of Digital Strategy and members of the COVID–19 response team interacted with the platforms about their efforts to suppress vaccine misinformation. They expressed concern that Facebook in particular was “one of the top drivers of vaccine hesitancy,” due to the spread of allegedly false or misleading claims on the platform. … Thus, the officials peppered Facebook (and to a lesser extent, Twitter and YouTube) with detailed questions about their policies, pushed them to suppress certain content, and sometimes recommended policy changes. Some of these communications were more aggressive than others. For example, the director of Digital Strategy, frustrated that Facebook had not removed a particular post, complained: “[L]ast time we did this dance, it ended in an insurrection.” … Another official, unhappy with Facebook’s supposed lack of transparency about its vaccine misinformation problems, wrote: “Internally we have been considering our options on what to do about it.” … Publicly, White House communications officials called on the platforms to do more to address COVID–19 misinformation—and, perhaps as motivation, raised the possibility of reforms aimed at the platforms, including changes to the antitrust laws and 47 U. S. C. §230.
Murthy, Surgeon General, et al. v. Missouri et al.
Even the evidence that the White House had pressured Facebook about not taking down a post wasn’t sufficient to provide standing, because it could not be linked to a post from one of the plaintiffs.
Surgeon General. In July 2021, Surgeon General Vivek Murthy issued a health advisory on misinformation. The advisory encouraged platforms to “[r]edesign recommendation algorithms to avoid amplifying misinformation,” “[i]mpose clear consequences for accounts that repeatedly violate platform policies,” and “[p]rovide information from trusted and credible sources to prevent misconceptions from taking hold.” … At a press conference to announce the advisory, Surgeon General Murthy argued that the platforms should “operate with greater transparency and accountability.” … The following year, the Surgeon General issued a “Request for Information,” seeking, among other things, reports on each platform’s “COVID–19 misinformation policies.”
Murthy, Surgeon General, et al. v. Missouri et al.
The Surgeon General not only issued a health advisory on “misinformation”, encouraging platforms to redesign their algorithms to not only suppress such content, but to punish those who repeatedly posted such information.
CDC. Like the White House, the CDC frequently communicated with the platforms about COVID–19 misinformation. In early 2020, Facebook reached out to the agency, seeking authoritative information about the virus that it could post on the platform. The following year, the CDC’s communications expanded to other platforms, including Twitter and YouTube. The CDC hosted meetings and sent reports to the platforms, alerting them to misinformation trends and flagging example posts. The platforms often asked the agency for fact checks on specific claims.
Murthy, Surgeon General, et al. v. Missouri et al.
Facebook reaching out to the CDC for “authoritative information” is one thing, but when the CDC flagged what they considered “misinformation”, with the clear intent that it’s to be suppressed, that is interference with freedom of the press.
FBI and CISA. These agencies communicated with the platforms about election-related misinformation. They hosted meetings with several platforms in advance of the 2020 Presidential election and the 2022 midterms. The FBI alerted the platforms to posts containing false information about voting, as well as pernicious foreign influence campaigns that might spread on their sites. Shortly before the 2020 election, the FBI warned the platforms about the potential for a Russian hack-and-leak operation. Some companies then updated their moderation policies to prohibit users from posting hacked materials. Until mid-2022, CISA, through its “switchboarding” operations, forwarded third-party reports of election-related misinformation to the platforms. These communications typically stated that the agency “w[ould] not take any action, favorable or unfavorable, toward social media companies based on decisions about how or whether to use this information.”
Murthy, Surgeon General, et al. v. Missouri et al.
While the CISA stated that they would not take any action, favorable or unfavorable, toward the social media companies for their actions, could that be said of the FBI? After all, by claiming information was false that later turned out to be true, the FBI interfered with elections.
However, even with all of these examples, the court claimed that the plaintiffs didn’t have standing because they could not show a direct causal link between the unconstitutional actions of federal agencies and the suppression of their data. In other words, the federal government could violate the First Amendment as long as they didn’t name someone who could actually bring a case against them. That way, according to the court, no one could have standing to sue.
Dissent
Justice Alito wrote an interesting dissent, joined by Justices Thomas and Gorsuch.
This case involves what the District Court termed “a far reaching and widespread censorship campaign” conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID–19 on social media. … Victims of the campaign perceived by the lower courts brought this action to ensure that the Government did not continue to coerce social media platforms to suppress speech. Among these victims were two States, whose public health officials were hampered in their ability to share their expertise with state residents; distinguished professors of medicine at Stanford and Harvard; a professor of psychiatry at the University of California, Irvine School of Medicine; the owner and operator of a news website; and Jill Hines, the director of a consumer and human rights advocacy organization. All these victims simply wanted to speak out on a question of the utmost public importance.
Murthy, Surgeon General, et al. v. Missouri et al.
Notice the different point of view Justice Alito brings to this case. While the majority looked to standing, the dissent looks to injury. All these people wanted to do was speak about important topics without the federal government placing its thumb on the scales.
If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this 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, … and speech that advances humanity’s store of knowledge, thought, and expression in fields such as science, medicine, history, the social sciences, philosophy, and the arts, …
Murthy, Surgeon General, et al. v. Missouri et al.
The lower courts saw this as a simple question of freedom of speech. That’s not entirely true, since much of the content suppressed wasn’t speech, but written and videoed content that the plaintiffs wanted to publish. That makes this a freedom of the press case, even though the courts have long lumped all freedom of expression into “freedom of speech”.
The speech at issue falls squarely into those categories. It concerns the COVID–19 virus, which has killed more than a million Americans. Our country’s response to the COVID–19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our dedication to a free marketplace of ideas demands that dissenting views on such matters be allowed. 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. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed. That is what inevitably happens when entry to the marketplace of ideas is restricted.
Murthy, Surgeon General, et al. v. Missouri et al.
We’re getting closer to the heart of the matter. You see free speech doesn’t have to be true. In fact, the expression of controversial, unconventional, and especially those contrary to our understanding, is foundational to our search for truth.
Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish. But government officials may not coerce private entities to suppress speech, … and that is what happened in this case.
Murthy, Surgeon General, et al. v. Missouri et al
Justice Alito points out the core of the matter, government officials coercing private entities to suppress speech.
With a vast amount of evidence, Justice Alito could probably create hundreds, if not thousands of pages in his dissent. He has decided to focus on the White House and Surgeon Generals office, the most influential social media platforms, and one plaintiff, Jill Hines.
With the inquiry focused in this way, here is what the record plainly shows. For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit. These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue, … and consequently, we are obligated to tackle the free speech issue that the case presents.
Murthy, Surgeon General, et al. v. Missouri et al.
Justice Alito points out that Jill Hines was indisputably injured by the actions of the federal government, even though the government did not specifically identify her or her content for censorship.
The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.
Murthy, Surgeon General, et al. v. Missouri et al.
By hiding behind an unreasonable strictness for establishing standing, the court has shirked its responsibility, further injuring the plaintiffs by denying them their right to petition the government for a redress of grievance.
That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.
Murthy, Surgeon General, et al. v. Missouri et al.
As I pointed out before, the court has told those in government all they have to do to censor someone is not explicitly name them. Lower courts, who tend to follow the opinions of the Supreme Court, will most likely take this into consideration when future claims of censorship arise. Furthermore, the court’s decision actually provides incentives to social media and other platforms to follow whatever suggestions come from the federal government.
Even if government threats did not specifically name Ms. Hines the rules Facebook and other platforms adopted in response to government pressure injured her and the other plaintiffs.
While all this was going on, Jill Hines and others were subjected to censorship. Hines serves as the co-director of Health Freedom Louisiana, an organization that advocated against vaccine and mask mandates during the pandemic. Over the course of the pandemic—and while the White House was pressuring Facebook—the platform repeatedly censored Hines’s speech.
Murthy, Surgeon General, et al. v. Missouri et al.
As the dissent shows, there was a causal link between the action of the federal government and the injuries sustained by the plaintiffs; it just wasn’t spelled out so a child could find it.
Conclusion
I must admit, this decision was a big disappointment for me. How could the court look at the actions taken by government and not find them a violation of the First Amendment? By placing a standard of standing that no one could reasonably reach. I’m not sure why the court chose to stand with the illegal actions of the federal government, but they did. And because of that, we can expect more censorship, especially with the coming 2024 elections.
Remember when I asked you to keep in mind the goal of federal agencies to prevent misinformation? Nothing in the Constitution delegates to the federal government the authority to define what is and isn’t true. As time went on, the very things these federal agencies claimed were misinformation turned out to be true. In other words, these agencies were not preventing misinformation, but propagating it. They were not protecting the public from bad information, they were the ones spreading the bad information. This’s why the freedoms of expression, speech, press, and assembly, are so important. By suppressing facts, data, and information they did not like, all while promoting their own misinformation, the federal government harmed many more than the plaintiffs. They harmed everyone who was expressing their ideas and the facts and data to prove they were right. More than that, the government kept vital and life-saving information from the public. I remembering being called “Grandma killer” for pointing out the problems with masks and the fake mRNA vaccines. Now we find out that it was those in government who suppressed the limitations of masks and the still untested mRNA shots that were the one endangering the lives of others. They also suppressed information about treatments that, at least anecdotally, proved effective in treating COVID-19. Not only did this needlessly endanger the lives of millions of Americans, and billions around the world, but had these treatments been properly tested and found even moderately effective, there would have been no need for the Emergency Use Authorization and the billions of U.S. tax dollars funneled to the vaccine manufacturing companies. Neither would have there been the opportunity for the vaccine mandates and all the damage they did.
We’ve found out that there were those in government who not only manipulated the 2020 election, using their lies to scare people away from polling places, but placed their thumbs on the scales to bias the news regarding the candidates and their actions. The American people were lied to by their government, and this court couldn’t be bothered to see that fact.
To the other point I asked you to remember, it was not a single person who committed these crimes, but dozens of officials at varying levels of the federal government. They used their offices to protect positions, and in doing so corrupted our election, which led to the January 6th demonstrations and the abuse of many of the defendants.
Yes, what these federal actors did was a crime. They willfully deprived the American people of rights protected by the Constitution of the United States. In fact, it was not a single individual, but a conspiracy to do so. Not only should the court have looked at the merits of this case, they should have referred criminal charges against the appellants for violations of 18 U.S.C. §241.
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; …
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Worse than the crime this court has allowed to go unpunished, is the destruction of both wisdom and liberty this decision perpetuates. As Benjamin Franklin, writing as Silence Dogood, stated in 1722:
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.”
Silence Dogood, No. 8, 9 July 1722
Without the ability to express our ideas, public liberty becomes a hollow shadow. And by being denied access to information, we not only lose the opportunity to be exposed to other ideas, but the ability to think freely, without some master curating what we are allowed to know and what we can think. Where is wisdom and liberty then?
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com