Supreme Court Decides Murthy v. Missouri

On June 26, 2024, the U.S. Supreme Court decided Murthy v. Missouri, No. 23-411, holding that neither the individual plaintiffs nor the state plaintiffs established standing to seek an injunction prohibiting governmental officers or agencies from communicating with social-media platforms regarding content-moderation decisions.

Under longstanding content-moderation policies, social-media platforms have taken a range of actions to suppress certain categories of speech, including placing warning labels on posts, deleting posts, “demoting” content to make it less visible to other users, and suspending or banning users who frequently post content that violates platform policies. During the 2020 election season and the COVID-19 pandemic, social-media platforms frequently removed, demoted, or fact-checked posts containing allegedly false or misleading information. At the same time, federal officials, concerned about the spread of misinformation on social media, communicated extensively with the platforms about the platforms’ content-moderation efforts.

Three individual plaintiffs and the states of Missouri and Louisiana sued dozens of Executive Branch officials and agencies, alleging that the officials and agencies pressured social-media platforms to censor the plaintiffs’ speech and thereby violated the First Amendment. The District Court found the government defendants likely “coerced” or “significantly encouraged” the platforms to the extent that their content-moderation decisions should be deemed to be governmental decisions, and issued a preliminary injunction limiting the officials’ and agencies’ communications with the platforms. The Fifth Circuit affirmed in part, agreeing that the plaintiffs had standing to sue but modifying the District Court’s preliminary injunction.

The Supreme Court reversed without reaching the merits of the plaintiffs’ claims, finding the plaintiffs lacked standing to seek an injunction against any of the defendants. The Court noted that to establish standing, the plaintiffs needed to show an actual, concrete and particularized injury that they would imminently suffer, that was fairly traceable to the challenged governmental action, and that was redressable by a favorable ruling. Because the plaintiffs sought forward-looking relief, the plaintiffs also needed to show that they faced a real and immediate threat of repeated injury. Thus, the plaintiffs could establish standing only if they showed a substantial risk that, in the near future, at least one platform would restrict the speech of at least one of the plaintiffs in response to the actions of at least one government defendant. 

Although the plaintiffs claimed standing based on the “direct censorship” of their own speech, the Court held that they had failed to show any discrete instance of content moderation caused by any of the challenged governmental actions. The Court also noted that all of the social-media platforms independently moderated similar content long before any of the government defendants engaged in the challenged conduct. Ultimately, the Court determined that no plaintiff had shown 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. Because no plaintiff had shown a concrete injury, the Court held, they lacked standing to seek injunctive relief. 

The Court also found that, because the plaintiffs failed to link any of the platforms’ past restrictions of the plaintiffs’ speech to the government defendants’ communications with the platforms, the plaintiffs could not rely on past restrictions to show that future censorship was likely. This failure to establish traceability for past harms, the Court concluded, substantially undermined the plaintiffs’ standing argument. And without proof of an ongoing governmental pressure campaign — which the plaintiffs had not provided — the Court found entirely speculative the plaintiffs’ argument that the platforms’ future content-moderation decisions would be attributable, even in part, to the government defendants. Thus, the Court held, the plaintiffs also did not demonstrate they faced a real and immediate threat of repeated injury.

The Court also rejected the plaintiffs’ “right to listen” theory of standing. The individual plaintiffs claimed an interest in reading and engaging with the content of other speakers on social media. The Court rejected this theory, which it found “startlingly broad.” Although a First Amendment right to receive information and ideas exists, the Court has identified a cognizable injury based on violation of that right only where the listener has a concrete, specific connection to the speaker. Here, the individual plaintiffs made no such showing. Similarly, although the state plaintiffs’ “right to listen” theory asserted a sovereign interest in hearing from their citizens on social media, the states failed to identify any specific speakers or topics they had been unable to hear or follow, and so the Court rejected their theory as well.

Because none of the plaintiffs could establish a likelihood of standing, the Supreme Court reversed the Fifth Circuit’s modified preliminary injunction.

Justice Barrett delivered the opinion of the Court, in which the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Jackson joined. 

Justice Alito filed a dissenting opinion in which Justices Thomas and Gorsuch joined.