Will the Supreme Court's Decision in Murthy v. Missouri Lead to More Government Censorship?

Closing out a year of high profile First Amendment cases, the Supreme Court decided Murthy v. Missouri (the social media jawboning case), holding, in a 6–3 opinion, that neither the state nor individual plaintiffs had established standing to seek an injunction against the government defendants.

The Murthy opinion follows on the heels of the May opinion in NRA v. Vullo, which, like Murthy, turned on allegations that government employees used their official positions to induce private entities to silence third parties. Both cases presented similar allegations of censorship by stealth, which occurs when a private entity limits its customers’ or members’ speech because the government asked it to. Both cases should have been controlled by Bantam Books v. Sullivan, which held that First Amendment speech protection cannot be evaded by using a private intermediary to launder government censorship. But whereas Vullo was decided under Bantam Books, the majority opinion in Murthy does not even cite it—even to distinguish it. Instead, the Court relied on standing doctrines to dispose of the case.

In Vullo, the New York state financial regulator pressured financial services companies to cut ties with clients, such as the NRA, that advocate for positions disfavored by the state. The Court held that 1) “Bantam Books stands for the principle that a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf”; and 2) “To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that . . . could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech.” This summary would appear to apply to the allegations in Murthy.

Instead, Murthy focused solely on standing and held that it had not been established. The facts in Murthy are relatively well known, made famous in part by “Twitter Files” journalists Matt Taibbi and Michael Shellenberger, among others, who testified before Congress regarding the successful efforts of government officials who used their positions to convince social media platforms to censor speech that challenged the government’s viewpoint on hot topics, such as Covid-19, vaccinations, and elections. (These journalists filed an amicus brief in support of Missouri et al. that provides background information.) Encouragement ranged from nagging—e.g., “I want an answer on what happened here and I want it today”—to threatening regulatory action—such as initiating a “robust anti-trust program” if the platform didn’t comply.

Nevertheless, the Court held that no plaintiff had standing because standing to seek an injunction requires plaintiffs to demonstrate a substantial risk of future harm traceable to a government defendant. This, the Court held, plaintiffs did not do because, despite acknowledging that government officials contacted social media platforms and “pushed them to suppress certain content,” an injunction would not necessarily stop the platforms from independently moderating speech in the future should they choose to do so. Moreover, the Court held that plaintiffs had not demonstrated that past successful efforts by government officials to suppress their speech was sufficient to show future threat of injury. Indeed, in some instances, the platforms had begun limiting the posting or amplification of plaintiffs’ content before the government contacted the platforms. This was always a challenging aspect of this lawsuit: tracing government action directly through the platforms to the plaintiffs’ posts. This latter point was critical to the outcome because, unlike compensatory relief that is based on tracing the injury to government action, for forward-looking relief, “the past injuries are relevant only for their predictive value.” Accordingly, in what might be called the Murder on the Orient Express rule, the Court required plaintiffs to trace each act of censorship to a particular government defendant before recognizing future risk of harm. In essence, if you can’t prove who struck the fatal blow, then government action presents no risk of future harm because the Court doesn’t know whom to enjoin and from doing what.

Of course, under Bantam Books and Vullo, government coercion or inducement creates the First Amendment violation because the government action was easily traced through the intermediary to the speaker. Murthy, by contrast, requires more—mandating an identified future communication subject to an identified censorship attempt by a known government actor leading to coercion upon a specific platform to suppress that communication. Without such detail, under Murthy, alleged future harm is mere conjecture insufficient to support an injunction. Moreover, where platforms may independently apply their own content-moderation policies in the future, standing to seek an injunction is not established where government censorship may be redundant to private curation.

Murthy presented the Court with the opportunity to be consistent in holding that government may not censor speech indirectly any more than it may do so directly by applying the three Vullo factors: “(1) the authority of the government officials who are alleged to have engaged in coercion, (2) the nature of statements made by those officials, and (3) the reactions of the third party alleged to have been coerced.” As Justice Alito pointed out in his dissent, “all three factors point to coercion.”

Instead, the Court avoided the merits, leaving a confusing disjunction between Bantam Books and Vullo on the one hand, and Murthy on the other. Murthy may thus encourage government officials to contact intermediaries to censor disfavored messaging, assuming that traceability of the death blow cannot be established even where government pressure is clear. The dissent lays out how such a “piecemeal” approach was used and could be used again to abridge free debate by relying on a mélange of approaches from simple nagging to regulatory threats to ensure compliance with government speech directives.

The outcome in Murthy may have turned in part on the Fifth Circuit’s characterization of the government’s censorship attempts as transforming media platforms into government actors. The unnecessary insertion of “government actor” analysis muddied the analytical waters by requiring proof that private action—which is not bound by the First Amendment—was transformed into state action. In such a case, the private actor becomes subject to the First Amendment rather than being protected by it. Thus, rather than applying Bantam Books, with its focus on the constitutionality of state action, the Court instead focused on whether the private platforms were transformed into government censors. This added level of analysis would explain why suffering government censorship alone was deemed insufficient to establish standing.

Murthy thus has two takeaways. First, as a legal matter, the clear standard enunciated in Bantam Books and Vullo is not as clear as it seemed, and thus government may do indirectly what it cannot do directly if the plaintiff is unable to establish traceability and redressability at an individual message level. Second, as the administrative state continues to expand its reach over private entities, it accumulates additional levers it can pull to control public discourse while obscuring its own responsibility.

 

Disclosure: The author’s employer, Americans for Prosperity Foundation, filed an amicus brief in support of Petitioners highlighting the similarity between the Murthy and Vullo cases and arguing that both should be controlled by Bantam Books.