Murthy v. Missouri, 2024. U.S. LEXIS 2842 (S. Ct. June 26, 2024)
Murthy v. Missouri, 2024, Supreme Court of the United States, decided June 26, 2024.
Following a grant of panel rehearing, the Fifth Circuit affirmed in part and reversed in part. Missouri v. Biden, 83 F. 4th 350 (2023). It first held that the individual plaintiffs had Article III standing to seek injunctive relief, reasoning that the social-media companies had suppressed the plaintiffs’ speech in the past and were likely to do so again in the future, id., at 367-369, and that both of these injuries were “traceable to government-coerced enforcement” of the platform’s policies and “redressable by an injunction against the government officials,” id., at 373. The court also concluded that the States had standing, both because the platforms had restricted the posts of individual state officials and because the States have the “right to listen” to their citizens on social media. Id., at 371-372.
Justice Barrett delivered the opinion of the Court.
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 their content-moderation efforts.
The plaintiffs, two States and five social-media users, sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to suppress protected speech in violation of the First Amendment. The Fifth Circuit agreed, concluding that the officials’ communications rendered them responsible for the private platforms’ moderation decisions. It then affirmed a sweeping preliminary injunction.
The Fifth Circuit was wrong to do so. To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.
Respondents are two States and five individual social-media users. They were the plaintiffs below, and for the sake of narrative clarity, we will refer to them as “plaintiffs” in this opinion. (Likewise, we will refer to the Government individuals and agencies as “defendants” rather than petitioners.) The individual plaintiffs—three doctors, the owner of a news website, and a healthcare activist—allege that various platforms removed or demoted their COVID-19 or election-related content between 2020 and 2023. The States, Missouri and Louisiana, claim that the platforms have suppressed the speech of state entities and officials, as well as their citizens’ speech.
Though the platforms restricted the plaintiffs’ content, the plaintiffs maintain that the Federal Government was behind it. Acting on that belief, the plaintiffs sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to censor the plaintiffs’ speech in violation of the First Amendment. The States filed their complaint on May 5, 2022. The next month, they moved for a preliminary injunction, seeking to stop the defendants from “taking any steps to demand, urge, encourage, pressure, or otherwise induce” any platform “to censor, suppress, remove, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content, or viewpoint expressed on social media.” 1 id., at 253. The individual plaintiffs joined the suit on August 2, 2022.
Though the platforms restricted the plaintiffs’ content, the plaintiffs maintain that the Federal Government was behind it. Acting on that belief, the plaintiffs sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to censor the plaintiffs’ speech in violation of the First Amendment. The States filed their complaint on May 5, 2022. The next month, they moved for a preliminary injunction, seeking to stop the defendants from “taking any steps to demand, urge, encourage, pressure, or otherwise induce” any platform “to censor, suppress, remove, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content, or viewpoint expressed on social media.” 1 id., at 253. The individual plaintiffs joined the suit on August 2, 2022.
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.
The plaintiffs claim standing based on the “direct censorship” of their own speech as well as their “right to listen” to others who faced social-media censorship. Brief for Respondents 19, 22. Notably, both theories depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
Before we evaluate the plaintiffs’ different theories, a few preliminaries: The plaintiff “bears the burden of establishing standing as of the time [s]he brought th[e] lawsuit and maintaining it thereafter.” Carney v. Adams, 592 U. S. 53, 59, 141 S. Ct. 493, 208 L. Ed. 2d 305 (2020). She must support each element of standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). At the preliminary injunction stage, then, the plaintiff must make a “clear showing” that she is “likely” to establish each element of standing. See Winter v. Nat. Res. Def. Council, Inc., 555 U. S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) (emphasis deleted). Where, as here, the parties have taken discovery, the plaintiff cannot rest on “mere allegations,” but must instead point to factual evidence. See Lujan, 504 U. S., at 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (internal quotation marks omitted).
Here, a note of caution: If the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game. But because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value. See O’Shea, 414 U. S., at 495-496, 94 S. Ct. 669, 38 L. Ed. 2d 674 (“Past exposure to illegal conduct” can serve as evidence of threatened future injury but “does not in itself show a present case or controversy regarding injunctive relief”). If a plaintiff demonstrates that a particular Government defendant was behind her past social-media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant. Conversely, if a plaintiff cannot trace her past injury to one of the defendants, it will be much harder for her to make that showing. See Clapper, 568 U. S., at 411, 133 S. Ct. 1138, 185 L. Ed. 2d 264. In the latter situation, the plaintiff would essentially have to build her case from scratch, showing why she has some newfound reason to fear that one of the named defendants will coerce her chosen platform to restrict future speech on a topic about which she plans to post—in this case, either COVID-19 or the upcoming election. Keep in mind, therefore, that the past is relevant only insofar as it is a launching pad for a showing of imminent future injury.
This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.
To obtain forward-looking relief, the plaintiffs must establish a substantial risk of future injury that is traceable to the Government defendants and likely to be redressed by an injunction against them. To carry that burden, the plaintiffs must proffer evidence that the defendants’ “allegedly wrongful behavior w[ould] likely occur or continue.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). At the preliminary injunction stage, the plaintiffs must show that they are likely to succeed in carrying that burden. See Winter, 555 U. S., at 22, 129 S. Ct. 365, 172 L. Ed. 2d 249. But without proof of an ongoing pressure campaign, it is entirely speculative that the platforms’ future moderation decisions will be attributable, even in part, to the defendants.
We conclude briefly with the plaintiffs’ “right to listen” theory. The individual plaintiffs claim an interest in reading and engaging with the content of other speakers on social media. The First Amendment, they argue, protects that interest. Thus, the plaintiffs assert injuries based on the restrictions that countless other social-media users have experienced.
The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from “exercis[ing such] general legal oversight” of the other branches of Government. TransUnion, 594 U. S., at 423-424. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.
