The Hidden Merits Ruling in Murthy v. Missouri

Both the immediate stakes and the lineup in Murthy v. Missouri indicate that the case was decided on ideological grounds. The stakes: claims by COVID conspiracy theorists, election denialists, and their allies that the Biden administration impermissibly coerced social media platforms to suppress their speech. The lineup: a majority opinion by Justice Barrett joined by the other two relatively centrist Republican appointees (CJ Roberts and Justice Kavanaugh) as well as the Court's three Democratic appointees, versus a dissent by Justice Alito and the other two most conservative Justices (Thomas and Gorsuch).

Yet the long-term stakes of the case do not have a clear ideological valence. It is easy to imagine a future Republican administration pressuring platforms to suppress messages it deems misinformation--whether those messages contain warnings about the impact or reality of climate change, use gender-inclusive pronouns, or otherwise offend extreme conservative sensibilities.

As everyone on the Court rightly recognizes, if the government actually coerces private actors (such as social media platforms) to censor third-party speech (by the likes of their users), that's a First Amendment violation. The legitimately difficult and important merits question in Murthy was what counts as coercion. Obviously, a law that literally requires private actors to censor other private actors counts. So should a literal threat of executive action.

But there is a range of perfectly innocent--indeed, vital--communications from government officials to private actors that fall on the other side of the line. Government officials routinely ask responsible news organizations not to publish various forms of information that could damage national security or endanger the safety of persons in the field. Surely there's nothing wrong with government officials asking platforms not to host such disclosures by users.

Indeed, so long as the government is really just asking, it doesn't matter whether it's doing so in pursuit of a vital interest such as national security or public health or for some less worthy purpose. The key is the difference between asking--i.e., jawboning--versus requiring through the coercive power of the state. The Court could have used Murthy to answer the question of where the line is between permissible jawboning and impermissible coercion. By deciding the case purely on the basis of standing, the Court missed an opportunity to settle that important question.

Or did it?

As a formal matter, Justice Barrett's opinion decides only that the plaintiffs lack Article III standing to seek injunctive relief (which is what they sought and obtained in the lower courts). But as a practical matter, her opinion can be seen as shedding light on the merits.

Justice Barrett's Murthy opinion finds that the plaintiffs lack standing because they haven't shown that their alleged injury is traceable to the defendants' conduct. As she explains, the ultimate question is whether the plaintiffs can demonstrate a sufficient likelihood of future injury to warrant injunctive relief, but to address that issue, she considers the record of past action. As to that record, she resolves two issues against the plaintiffs.

First, the opinion says that the platforms were doing a whole lot of content moderation on their own before the Biden administration's actions. That's a way of saying that the administration's actions didn't cause whatever speech injury the plaintiffs have suffered and are therefore (un)likely to suffer in the future.

Second, the opinion says that the Biden administration's actions seem unlikely to have caused censorship in the past or to cause censorship in the future because the administration was only asking, not ordering or threatening adverse consequences. Consider what the Court includes in footnote 3, critiquing the Fifth Circuit's reliance on the district court's factual findings, "many of which unfortunately appear to be clearly erroneous." Here's an excerpt (citations omitted):

[T]he [district] court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. The record it cites says nothing about “censorship requests.” Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” As to the “calls for censorship,” the court’s proof included statements from Members of Congress, who are not parties to this suit. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so.  Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for other forms of moderation.

All of that and similar points in the body of the opinion are in service of the Court's conclusion that plaintiffs lack standing because they haven't shown a traceable injury, but they could also be understood to express a view on the merits--namely this: wherever the line between permissible jawboning and impermissible coercion lies, the sorts of actions taken by the Biden administration fall on the permissible side.

So read as strongly hinting at the merits, the Court's opinion on standing strikes me as both correct, given the evidence, and appropriately modest, given the potential for abuse by a future administration. The implied view of the merits wisely leaves open the possibility that some government actions short of imprisoning private actors who don't accede to demands to censor third parties would count as coercion.