This week the Supreme Court threw out a lawsuit seeking to limit the federal government’s ability to communicate with social media companies regarding their content moderation policies. 

In the majority opinion in Murthy v. Missouri, Justice Amy Coney Barrett wrote that the plaintiffs failed to show a “concrete link” between the restrictions that they alleged and conduct of government officials. The plaintiffs in Murthy  five social media users and the states of Missouri and Louisiana – claimed that the government had engaged in a sprawling campaign to threaten social media companies into removing or suppressing content expressing disfavored viewpoints, particularly related to the COVID pandemic, vaccines, and election fraud.

On July 4, 2023, a federal judge in Louisiana granted a preliminary injunction, relying in significant part on a number of mischaracterizations and false claims in issuing a wide-ranging order limiting government communication with social media platforms and independent researchers. The case eventually made its way to the Fifth Circuit Court of Appeals, which issued a modified injunction last October, then on to the Supreme Court, which stayed the injunction and heard arguments in March. 

Implications of the Court’s Decision

There is much that is positive about the Murthy decision. Although decided only on standing grounds, it is a thorough rebuke of the district court and the Fifth Circuit decisions — both their articulation of the law with respect to what the plaintiffs had to prove to prevail for that purpose and on their description and evaluation of the relevant facts. It is the latter that is particularly noteworthy. 

Typically, great deference is given to a trial court’s factual findings, unless clearly erroneous (a hard standard to establish). That standard led Ryan Goodman and Justin Hendrix to worry that Murthy might be a landmark Supreme Court decision that, ironically given its subject matter, would come out incorrectly due to deliberate misinformation in the trial record, presented by the plaintiffs and swallowed whole by the district judge.

But Justice Barrett, taking a cue from a particularly forceful and blunt government reply brief on a series of outright falsehoods in the record, delved deep into that factual record to show the paucity of facts to meet the burden that the plaintiffs had to shoulder in order to prevail. As to each plaintiff, she showed the dearth of facts to support that any action taken by the private media companies was a result of executive branch action. She also noted, “The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous.”

It is worrisome to see how Justice Samuel Alito, along with Justices Clarence Thomas and Neil Gorsuch, wrote a dissenting opinion accepting the obviously flawed record below as fact. “Government officials may not coerce private entities to suppress speech, and that is what happened in this case,” Alito wrote. But as the 6-member majority correctly observed about the purported fact-finding below, “The District Court found that the defendants and the platforms had an ‘efficient report-and-censor relationship.’ But much of its evidence is inapposite.” 

The 6-3 decision is by no means a reason to rejoice for the rule of law and common sense. Like much of what the Court is up to these days, by deciding the issue only on standing, the Court kicked down the road many open issues. The Court provides the key stakeholders and judges across the country with no guidance as to how to draw the line between legitimate advocacy and persuasion by the government versus undue influences such that the actions of a third party, even ones as powerful as social media and tech companies, are transmogrified into state action. 

The Court does not address whether public statements by the White House calling for such companies to take specific actions are a bridge too far, or if those same statements were made in private whether they would be more (or less) pernicious and legally vulnerable. And the Court did not wrestle with the core issue of what would be wrong with either the executive branch or the legislative branch taking action against a company that deliberately spread disinformation that could result in the loss of countless lives due to another epidemic, as but one highly practical example.

Finally, because the case was decided on standing grounds, the same forces that ginned up this case will simply get to work to shore up the missing showing of casualty. For instance, one oddity of the Murthy case was that none of the social media companies was an actual party, an omission that may not remain true in the next iteration of this vein of lawsuits when plaintiffs will be keen to learn from the Court’s decision and look for evidence that those private actors factored government pressure and reaction into their content moderation actions. So, like the abortion rulings decided this term, although the Court is currently maintaining the status quo, we need to stay tuned for when the Court inevitably will reach the merits.