Murthy v. Missouri

STANDING

Murthy contends that both individual and state respondents lack standing because the injury-in-fact is not traceable to governments’ actions. Brief for Petitioners, Vivek H. Murthy et al. (“Murthy”) at 17. Murthy argues that the government’s challenged actions did not cause platforms to moderate because content moderation had already occurred long before the government made the currently-challenged remarks in 2020. Id. at 18. Murthy further alleges that even if there was an injury-in-fact traceable to the government’s action in the past, the standing requirement in an injunction case requires respondents to establish an imminent threat in the future based on the repeated injury. Id. at 19. However, Murthy asserts that the government’s remarks only generate a generalized fear of hypothetical harm to individuals, not imminent danger. Id. at 19­–20. Additionally, Murthy explains that the First Amendment is designed to protect private actors against the government’s actions. Id. at 22. Thus, Murthy asserts that state respondents could not suffer First Amendment injuries because state actors lack First Amendment rights in the first place. Id.

Conversely, Missouri identifies an injury-in-fact that is traceable to the government’s action. Brief for Respondents, State of Missouri et al. (“Missouri”) at 21. Missouri first explains that both individuals and states can incur direct censorship injuries through private platforms’ censorship, and that individual respondents hold a “right to listen” under the First Amendment, which guarantees the right to speak and listen on social media. Id. at 19­–21. Missouri claims that individual Respondents incurred these injuries when Petitioners regularly monitored Respondents and silenced speakers whom individual respondents followed on social media. Id. Moreover, Missouri contends that state Respondents also incurred injury when federal censorship disrupted the states’ sovereign interest in hearing the undistorted voices of their citizens. Id. at 25. Lastly, Missouri argues that those harms are traceable to the government’s remarks because the platforms reacted predictably to the government’s actions; and, the moderation of users’ content is a foreseeable effect of the perceived threat by the government. Id. at 21–22. Missouri supports this by citing a significant increase in platform censorship following the government’s intervention. Id. at 21.

THE FIRST AMENDMENT AND EXISTENCE OF A STATE ACTION

Murthy argues that the First Amendment protects an individual’s free speech rights against a state or federal action, but not against a private action. Brief for Petitioners at 25. Thus, Murthy alleges that the government violates the First Amendment via a private decision in only a few limited circumstances where a government’s action coerces or significantly encourages a private action such that the private action can be attributed to the government’s action. Id. at 25–27. Murthy first explains that only compulsion, not persuasion, creates a state action. Id. at 25. Murthy contends that a government compels a private actor only by posing a threat of adverse consequences, or by offering a positive incentive substantial enough to override the platform’s independent judgment. Id. at 30. According to Murthy, the White House’s challenged remarks did not coerce or significantly influence the social media platforms’ decision because the remarks about potential amendments to laws concerning social media platform liability were merely brief, general responses to press questions rather than threats to coerce content moderation. Id. at 32.

Murthy further argues that lower courts found a state action by applying wrong standards that conflicted with precedents and principles established by the Supreme Court. Id. at 35. Murthy asserts that the Fifth Circuit’s four-factor test for coercion – (1) word choice and tone, (2) perception as a threat, (3) existence of regulatory authority, (4) reference of adverse consequences – conflicts with established precedents which require a threat for establishing compulsion. Id. at 37. For instance, Murthy points out that disallowing government speech based on language and tone would potentially prohibit government officials’ advocacy or criticism of private platform speeches, actions protected by First Amendment precedents. Id. at 38. Similarly, Murthy contends that no precedent holds that a private action turns into a state action only because a private party decided to act based on the government’s advice or approval. Id. at 45. Murthy explains that the lower court’s broad standard, which finds threat merely from the government’s approval, would prevent the government from approving or persuading a private party to undertake actions it believes will advance public interests. Id.

On the other hand, Missouri argues that the government coerces private actors if the actions go beyond passive attitudes when encouraging or discouraging private actors’ actions. Brief for Respondents at 32. Missouri contends that the White House coerced platforms into moderating content when the government officials’ remarks conveyed anger and referenced adverse actions that are within the government’s power to initiate or influence. Id. at 39­–40. Missouri also asserts that the existence of a threat depends on how a recipient interprets the message, not the author’s intent. Id. at 38. Therefore, Missouri asserts that a threat exists here because the fact that platforms totally complied with the government’s remarks indicates that the platforms interpreted them as a threat. Id. at 40. Alternatively, Missouri contends that the White House significantly encouraged platform content moderation by consistently expressing its preferences to private platforms and exerting pressure when these repetitive statements proved ineffective. Id. at 33.

Furthermore, Missouri counters petitioners’ contentions by arguing that the lower courts’ standards do not conflict with Supreme Court precedents. Id. at 39–40. Missouri argues that, just like the Fifth Circuit, the Supreme Court has relied on the recipients’ reactions to determine coercion. Id. Furthermore, Missouri criticizes petitioners’ argument that the government’s remarks persuaded private platforms to voluntarily moderate content, contending that this interpretation allows too much room for the government to manipulate the law to expand its power. Id. at 35. Finally, Missouri claims that the White House’s remarks on COVID-19 and Hunter Biden are compulsions because, despite being worded as questions, they were effectively orders as messages from “the most powerful office in the world” and had the intended result of suppressing the platforms. Id. at 41­–42.

INJUNCTION

Murthy argues that the lower courts’ injunction is overbroad. Brief for Petitioners at 45. Murthy asserts that a federal court must specifically tailor an injunction to remedy an injury to the individual rights of the parties involved, and not to the effects on non-parties. Id. at 46–47. However, Murthy argues that the lower courts granted an overbroad injunction that affects any users on any platform discussing any topic by taking into account the effects of challenged actions on non-parties in determining whether to grant the injunction. Id. at 47. Furthermore, Murthy explains that imminent harm to the plaintiff and the necessity of an injunction to prevent that harm must be established for an injunction to be granted as a remedy. Id. at 46. However, Murthy contends that Respondents and the Fifth Circuit failed to demonstrate that there were imminent First Amendment injuries that warranted an injunction and that that injunction granted was necessary to prevent such harm to Respondents if the government’s actions continued. Id.

Missouri counters that the lower courts’ injunction is not overbroad because it is tailored to redress the harm of potential platform users. Brief for Respondents at 51. Missouri argues that the government’s remarks have widespread consequences, suppressing millions of protected free speech postings by American citizens, necessitating a remedy like the one ordered by the lower courts. Id. at 52. Additionally, Missouri claims that the lower courts’ injunction adequately protected Respondents’ rights because no additional carveouts are necessary and the injunction’s impact is confined to free speech protected by the First Amendment. Id. Moreover, addressing Petitioners’ concerns about the potential chilling effect on the government’s advocacy of their policies, Missouri argues that similar concerns apply to any constitutional violations, citing Bivens v. v. Six Unknown Fed. Narcotics Agents, where the Fourth Amendment was broadly construed to imply a cause of action against the Federal Bureau of Narcotics. Id. at 49–50. In essence, Missouri suggests that establishing a protective rule for defendants whose wrongfulness is reasonably doubted is a more appropriate solution than eliminating accountability altogether. Id. at 50.