The Supreme Court rules on the government pressuring websites to moderate content

As part of an on-going series, Constitution Daily looks at recent Supreme Court decisions about the evolving world of social media, and the First Amendment challenges faced by governments, media companies, and the public.

At what point does the government, in taking actions to make social media websites aware of content considered to be “misinformation,” cross a constitutional line? On June 26, 2024, the Supreme Court addressed that question in Murthy v. Missouri, a case rooted in the COVID-19 pandemic and the 2020 presidential election.

The plaintiffs were the states of Louisiana and Missouri, and five individuals, including three doctors, a news website publisher, and a health care activist. They pointed to a pattern of alleged free speech suppression between 2020 and 2023 linked to actions taken by dozens of federal officials from the White House, the Office of the Surgeon General, and the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency.

Those federal actions, they claimed, led to various privately owned social media outlets, such as Facebook, and Twitter (now X), to delete content or block content posted by the plaintiffs under content moderation policies influenced by government pressure campaigns.

In her majority decision for the Court, Justice Amy Coney Barrett determined that the plaintiffs lacked Article III standing to pursue legal claims against the executive branch of the federal government, reversing and remanding a Fifth Circuit ruling that government had violated the plaintiffs’ First Amendment rights. Barrett was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson in the majority. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.

The Standing Issue

While the Fifth Circuit believed the plaintiffs had a right to sue in federal court, Justice Barrett quickly dismissed that idea.

“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,” Barrett concluded.

For the Supreme Court to consider taking up any case, it must first pass a basic constitutional test. Article III, Section 2 of the Constitution calls for federal courts to only consider cases or controversies where the plaintiff has “standing,” or the ability to prove an injury was caused by a party (in this case, the federal government) and that a federal court can address the injury.

Barrett cited a common definition of standing from the majority opinion in Clapper v. Amnesty International USA (2013), written by Justice Alito, that an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”

She did not believe the plaintiffs’ alleged injuries amounted to a successful challenge. “The plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. Instead, they seek to enjoin the Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.”

The majority also rejected the plaintiff’s main theory, that they were directly censored by the federal government’s communications campaigns with Facebook, Twitter, and others. “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,” Barrett noted.

Barrett said the plaintiffs failed to establish “causation findings with respect to any discrete instance of content moderation” in the past, and that social media outlets already had strengthened their moderation policies before they were contacted by the federal government, and did so after the federal government ended similar campaigns. The failure to prove a past connection to censorship undermined any argument that an injunction was needed to prevent future censorship.

The plaintiffs’ claims, upheld by the Fifth Circuit, were so broad that Court would be forced to undertake “general legal oversight” of the federal branch, a power it lacked under the Court’s case doctrine, Barrett concluded.

Alito’s First Amendment Dissent

In his dissent, Justice Alito saw the case as a basic challenge to free speech rights. “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,” Alito wrote.

“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,” Alito concluded.

Alito believed the plaintiffs showed enough evidence to prove standing, citing the case of Jill Hines, a healthcare activist, who faced COVID–19-related restrictions on Facebook.

“Hines showed that, when she sued, Facebook was censoring her COVID-related posts and groups. And because the White House prompted Facebook to amend its censorship policies, Hines’s censorship was, at least in part, caused by the White House and could be redressed by an injunction against the continuation of that conduct. For these reasons, Hines met all the requirements for Article III standing,” Alito argued.

Alito also had a strong rebuke of the White House’s campaigns to influence Facebook’s content moderation decisions, which he said possessed “all the hallmarks of coercion.”

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent,” Alito concluded.

While the majority decision in Murthy did not establish guidelines about the federal government’s attempts to influence social media companies, the Court made it clear that any future cases needed to establish a “concrete link” between evidence and the defendant’s actions to meet its standing doctrine.

Scott Bomboy is the editor in chief of the National Constitution Center.