Decision Alert: In Social Media “Jawboning” Case, Supreme Court Holds Individuals and States Lack Standing to Sue Federal Officials for Social Media Platforms’ Content Moderation

In Murthy v. United States, the Supreme Court held that private and state plaintiffs did not have Article III standing to sue federal officials who plaintiffs claimed violated their First Amendment rights by allegedly pressuring social media companies to restrict or remove content.

As previously summarized in Dykema’s April 2024 Edition, Missouri, Louisiana, and five individuals sued various federal government officials for violating their rights to free speech. According to the plaintiffs, social media companies removed or downgraded content, mainly related to the COVID-19 pandemic and the 2020 election, at the direction of federal government officials. After discovery, the district court granted the plaintiffs’ request for a preliminary injunction limiting how federal officials could interact with social media companies, while including some carveouts for criminal activity and national security concerns. The Fifth Circuit narrowed but upheld the injunction.

The Supreme Court reversed. Writing for a six-justice majority, Justice Barrett identified several reasons that the plaintiffs lacked standing. For instance, the plaintiffs could not show the harm they suffered was traceable to the defendants’ conduct. The social media platforms already moderated content, including content related to COVID-19, “long before any of the Government defendants engaged in the challenged conduct.” Social media platforms also consulted outside experts in addition to the government defendants. The plaintiffs treated the government defendants as a “monolith,” failing to show (as they had to) 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.” And because the plaintiffs were seeking an injunction to remedy against alleged future harm, they had to establish they faced “a real and immediate threat of repeated injury,” but they failed to do so. Because the alleged conduct was performed by third parties, and because of the lack of concrete evidence of future harm, the plaintiffs failed to establish Article III standing.

Justice Alito, joined by Justices Thomas and Gorsuch, dissented, arguing that the plaintiffs had standing to sue and that their First Amendment rights were violated. According to Justice Alito, the “vast” record includes evidence showing government actors communicated with social media companies and pressured them to remove or restrict access to certain social media posts. Facebook, for example, yielded to pressure from federal officials to moderate COVID-19-related speech. Those communications, he argued, meet the standing requirements for injury, traceability, and redressability. In addressing the merits, Justice Alito argued that although actions by private parties typically cannot violate the Constitution, that is not the case if those private actors do so at the government’s urging. Justice Alito concluded that social media platforms, which are uniquely vulnerable to pressure from the federal government because of the federal regulatory structure and the risk of antitrust enforcement, succumbed to the federal defendants’ pressure to restrict or remove content—that was sufficient for the plaintiffs to show a constitutional violation.

Takeaways:

• Without direct instructions from a government official to a social media platform to remove or restrict a particular user’s posts or content, that user will be unable to satisfy standing requirements to obtain injunctive relief, especially if the social media platform has already been implementing a content moderation policy.
• When plaintiffs seek redress for past harm (unlike the plaintiffs here), the burden for establishing standing is somewhat lower because they need only trace their past injuries to the government’s conduct, not show a real threat of future injury.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.