Plaintiffs Lack Standing to Sue Over Government Jawboning When Their Evidence is Based on Vibes–Murthy v. Missouri

June 26, 2024 · by · in Content Regulation, Derivative Liability

In a well-functioning society, governments and the private sector will engage in an ongoing dialogue about public welfare issues. Much of this conversation is healthy and productive, as both the government and the private sector have different expertise and different ways of advancing the public good, and joint cooperation can benefit everyone. At the same time, those conversations can feel coercive to private sector entities because the government has a myriad of regulatory powers over the private sector, and every government communication necessarily carries an implied threat that non-compliance could trigger some negative consequence. This risk is heightened when the targeted private sector activity involves speech, which is especially vulnerable to overreaching government demands. Striking the right balance between encouraging beneficial government discourse and thwarting abusive censorship pressure is very tricky.

In this case, two states (Louisiana and Missouri) and five individual plaintiffs challenged the COVID- and election-related content moderation decisions of social media services. The plaintiffs alleged that those content moderation decisions were the result of overreaching Federal government pressure that amounts to censorship, sometimes called “jawboning.” They sought an injunction against that censorship.

They found success in the district court and Fifth Circuit. In particular, the district court dropped a 155 page fever dream on July 4, 2023. That date was no accident. Judge Doughty obviously loved the symbolism of declaring freedom from Federal government overreach on Independence Day (even though it was a Federal holiday when the courthouse normally was closed). The majority opinion summarized Judge Doughty’s fever dream: “The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous” (see the details in FN4 of the majority opinion).

The Supreme Court reversed the lower courts and rejected the plaintiffs’ claims, but only on the procedural ground that the plaintiffs lack standing to sue. The majority did not reach the substantive question of whether the Federal government had actually overreached in pressuring the Internet services. (The majority says: “we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action”). Indeed, the majority opinion doesn’t contain a single mention of last month’s NRA v. Vullo decision, where it held that the NRA had stated a claim for impermissible censorship due to government jawboning. The decision was 6-3 with only two opinions. (Compare, say, the 7 opinions in the Rahimi case). The majority opinion, written by Justice Barrett, is well-written and no-nonsense.

While this decision ends the Fifth Circuit’s injunction for now, it doesn’t end the case. This case will go back to the lower court, where the plaintiffs will surely file an amended complaint and attempt to plead around the majority’s requirements. As I explain below, I’m not sure if the plaintiffs can overcome the standing problems created by the services’ content moderation freedom. Either way, I expect the next lower court ruling on standing in the amended complaint to go up the appellate chain again, maybe leading to a second Supreme Court review. If any plaintiffs show standing, then the courts can also address the substantive questions about constitutional overreach, which might require yet another round of appeals and ultimately may force the Supreme Court to provide more guidance on the boundaries between government dialogue and impermissible pressure. Fun times ahead.

The Majority Opinion

Every plaintiff must show that they have “standing.” The standing requirement may sound technical or procedural, but it’s a critical doctrine for gatekeeping court access. The standing requirement means that not everyone who is unhappy with the world can take it to court. Instead, a federal plaintiff “must show that she has suffered, or will suffer, an injury that is concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” A lack of standing means the case is over before it starts.

The majority explains that general rule: “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.” The plaintiffs didn’t meet that burden in this case (yet).

The majority explains:

[the claims] 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.

The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges…the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.

The plaintiffs didn’t seek damages for past censorship; they only sought an injunction against future censorship. (On remand, I assume the plaintiffs will add a damages claim…? Why not?). With respect to the injunction request, the court says there’s a traceability problem with the line of thinking that past content moderation decisions predict future government censorship:

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. 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 is fundamentally an evidence issue. The complaint was so poorly done that the plaintiffs didn’t properly connect the dots between the government actor’s request to the Internet service and how that turned into a suppression of the plaintiffs’ speech. Instead, the complaint recounts lots of communications between the government and the services and asks the majority to recognize the censorship vibes. The majority didn’t:

The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality….

the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.

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.

A properly drafted complaint might be able to fix that problem by drawing through lines from government pressure to content moderation outcomes:

The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole….for every defendant, there must be at least one plaintiff with standing to seek an injunction. This requires a certain threshold showing: namely, 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….

The plaintiffs faced speech restrictions on different platforms, about different topics, at different times. Different groups of defendants communicated with different platforms, about different topics, at different times. And even where the plaintiff, platform, time, content, and defendant line up, the links must be evaluated in light of the platform’s independent incentives to moderate content

Based on the weak complaint, the plaintiffs’ case falls apart. (See pages 14-21 of the majority opinion for a skillful dissection of the complaint). I won’t go through each example of how poorly the complaint connected the dots. It was embarrassing.

Even if the plaintiffs could connect the dots between the government pressure and the services’ content moderation decisions, that wouldn’t necessarily give standing for a future injunction. The majority says: “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.” (The dissent disagrees, saying “the White House threats did not come with expiration dates, and it would be silly to assume that the threats lost their force merely because White House officials opted not to renew them on a regular basis.” But I’m curious if Justice Alito believes government threats have some expiration date, or if they are permanent and immutable?).

The plaintiffs must also wrestle with the fact that Internet services make their own content moderation decisions. The majority says that discretion undermines the redressability for an injunction:

The plaintiffs assert several injuries—their past social-media restrictions, current self-censorship, and likely social-media restrictions in the future. The requested judicial relief, meanwhile, is an injunction stopping certain Government agencies and employees from coercing or encouraging the platforms to suppress speech. A court could prevent these Government defendants from interfering with the platforms’ independent application of their policies. But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion.

I think this will remain a challenge to the plaintiffs’ redo. Even if they show the through line, they have to show that the services wouldn’t have reached the same conclusion independently. Some of the evidence might suggest that the social media services made decisions they didn’t want to make, but other decisions weren’t really objectionable to the service at all (i.e., they acted in response to the government outreach because the item hadn’t been flagged before or they were willing to flip a judgment call or the outreach gave them additional information they hadn’t known).

Finally, the majority throws some shade on listeners’ “right to listen” as a basis of standing:

This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech….While we have recognized a “First Amendment right to ‘receive information and ideas,’” we have identified a cognizable injury only where the listener has a concrete, specific connection to the speaker.

Justice Alito’s Dissent

Justice Alito appears to take the position that if generalized government pressure causes a service to change its policy, all affected individuals would have standing. For example: “it is reasonable to infer (indeed, the inference leaps out from the record) that the efforts of the federal officials affected at least some of Facebook’s decisions to censor Hines.” In contrast, the majority opinion requires more specificity in the dialogue between the government and services, perhaps as specific as the plaintiff being named in the conversation…?

Implications

What Happens Next in This Case? As discussed above, I expect the plaintiffs to file a new complaint to address standing, and I would expect the district court judge and the Fifth Circuit to find standing again (after all, they already rubberstamped standing in this case). So this case seems destined for at least one more round at the Supreme Court.

Can the Plaintiffs Find Standing? If/when the case reaches the Supreme Court again, I’m not sure if these plaintiffs can find standing. They can more easily connect the dots to address the defects identified in the majority opinion (at least, I assume some plaintiffs will do better) to show how and why their specific content or account was targeted. I’m less clear how specific the allegations need to be. Will plaintiffs have to show that their items or accounts were specifically named by the government? Or will they just need to show a coherent sequence of: government pressure -> service action -> plaintiff detriment?

Even if the plaintiffs are hyper-specific with a coherent timeline, I still question if the plaintiffs can show traceability and redressability so long as Internet services have discretion over their content moderation, especially when it comes to content like COVID/vaccine/mask denialism and election misinformation that is toxic to social media communities and requires editorial management regardless of government pressure.

The Fifth Circuit’s Ignominious Track Record. At times, various federal circuit courts have gone so far wrong that the Supreme Court reversed their decisions far more often than other circuits. For a while, the Ninth Circuit and the Federal Circuit had this reputation. Now, it’s the Fifth Circuit, clearly the most dysfunctional federal appellate circuit in the country. They repeatedly disregard binding precedent and come up with rulings that break the rule of law, sometimes with shoutouts to Justice Thomas as if he’s the only Supreme Court justice that matters. The Fifth Circuit got Justice Thomas’ vote as it had hoped (along with Justices Alito and Gorsuch), but it fell two votes short of a majority.

The majority opinion loudly rebukes the Fifth Circuit multiple times. I would be embarrassed if my boss publicly trashed me like this. Yet, there is little evidence that the Fifth Circuit aspires to do better.

The Partisan Angle. This case focused solely on the Biden Administration’s dialogue with Internet services, which turned it into a MAGA litmus test. However, the Biden Administration did not invent jawboning of Internet services–that goes back many presidents, I think back to the Clinton Administration. Indeed, the Trump Administration loved to jawbone Internet services (it was often called “working the ref”). In the case of Trump’s attempt to repeal 230 by EO, he took punitive actions against Internet services due to his temper tantrum for Twitter fact-checking him for the first time. The EO worked the refs even if it was legally futile.

State and local officials engage in jawboning all of the time too. State AGs (Paxton is the worst, but he’s hardly alone) are notorious for launching unserious investigations into Internet services for purely partisan reasons, with the threat of punitive consequences far more obvious than the Biden Administration’s communications in this case.

So this case isn’t about Biden or the Democrats, it’s about government and the use–and sometimes misuse–of its authority to govern speech.

Do Internet Services Have the Freedom to Moderate Content? The majority repeatedly references the services’ independence to make their own content moderation decisions, and as shown in the Appendix below, the dissent agrees. But in the other pending Internet Law cases before the Supreme Court, Florida and Texas sought to restrict services’ freedom to exercise discretion over content moderation. This opinion will continue to make sense only if services actually have that discretion–a question we are eagerly waiting for the court to answer. Otherwise, if the government can’t coerce content moderation decisions through pressure, but can outright control content moderation by edict, guess what governments will do?

The Pliability of Internet Services. Even if Internet services’ editorial discretion is fully protected by the First Amendment and Section 230, Internet services will remain sensitive to government pressure. (Musk has falsely claimed his Twitter won’t be, only to roll multiple times anyway). The bigger the service is, the more they benefit from keeping regulators happy, even at the expense of their “customers.” So Justice Alito was right in lamenting this aspect, but this isn’t a Biden Administration problem or even a speech problem. It’s a problem with all large enterprises that are locked into a long-term dance with governments.

I hope the Supreme Court will keep this in mind when it gets a legal challenge by a service claiming that a regulation pressured it to changes its content moderation practices. Dozens or hundreds of those laws have been enacted recently, including the Texas and Florida social media censorship laws whose constitutionality is pending in the NetChoice cases. It would make no sense to worry about individual posters getting censored because the government pressured the services, if the Supreme Court isn’t even more vigilant where the government literally compels through regulation the services to change their policies.

The MAGA Movement Seeks to Destroy Trust and Accountability. No matter what happens in this case, the MAGA movement has been working hard to undermine trust in every government function, and this decision won’t prevent future complaints (formal and informal) about the government-service dialogue. Even if the lawsuits stop, there will be a constant drumbeat of conspiracy theories that the government (including the “deep state”) is working to censor conservative voices. This perceived censorship and implicit loss of power has become a defining issue among “conservatives,” and there is a lot of money and power to be obtained by continuing to stoke fears.

This anti-accountability movement brought to mind the horrible abuse heaped upon the Stanford Internet Observatory, which has had to retrench its research efforts because the MAGA movement branded it as part of the “censorship industrial complex.” Knocking SIO out of the accountability industry might cheer the MAGA base, but the House Republicans’ role in targeting SIO is actually a way worse form of censorship than anything the Biden Administration allegedly did in this case.

Case Citation: Murthy v. Missouri, 2024 WL 3165801 (U.S. Sup. Ct. June 26, 2024)

Appendix

I was intrigued by how many times Justice Alito spoke out in favor of Internet services’ editorial freedom and their amenability to distorting that freedom at the government’s behest. I’m flagging these quotes largely to facilitate my compare/contrast with whatever opinion(s) he signs in the NetChoice cases (especially with respect to the Zauderer discussion, where my position is that any mandatory transparency requirements will routinely facilitate impermissible government pressure on services):

  • “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”
  • “For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded.”
  • “social media have become a leading source of news for many Americans, and with the decline of other media, their importance may grow.”
  • “internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company. And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.” [This is a fever dream. The US government is showing the rest of the world how to embrace censorship (see, e.g., the TikTok ban), so it’s anachronistic at best to think that federal government diplomats are currently doing a damn thing to fight Internet service regulation in the EU or elsewhere.]
  • “internet platforms have a powerful incentive to please important federal officials”
  • “the White House threats did not come with expiration dates, and it would be silly to assume that the threats lost their force merely because White House officials opted not to renew them on a regular basis. Indeed, the record suggests that Facebook did not feel free to chart its own course when Hines sued”
  • “the White House was insistent that Facebook should do more than it was doing on its own, and Facebook repeatedly yielded—even if it did not always give the White House everything it wanted.”

Selected Jawboning Posts