Alito Has a Point in Social Media Free Speech Case—Sort of

The US Supreme Court’s approach to standing in cases where the government is accused of violating the Constitution needs rethinking—regardless of the merits of its free speech decision over alleged government coercion of social media platforms.

In its 6-3 decision in Murthy v. Missouri on June 26, the majority, written by Justice Amy Coney Barrett, correctly applied the current law of standing—the question of who has a right to sue for a cause of action—to dismiss claims of two states and five individuals that the Biden administration was massively coercing social media platforms to deprive the plaintiffs of access to information. It is unlikely that anyone else can be found to overcome the barriers to litigation in these circumstances.

After all, with one arguable exception, none of the plaintiffs could point to a specific post that they wanted to, but were unable to, read. And the defendants were scores of federal officials, with no clear connection between any one of them and a specific takedown.

More significantly, the social media platforms had their own programs in which they regularly took down millions of postings that violated their own standards, even before any federal official weighed in with their requests—or as the plaintiffs saw them, demands.

Perhaps most significantly, the relief sought was a court order against the continued violation of the plaintiffs’ First Amendment rights. The Supreme Court’s decision in City of Los Angeles v. Lyons held that an actual person who had suffered past injury (in that case a chokehold by the police) must show that there is a substantial risk that the same injury is likely to occur to them in order to be entitled to the requested injunction.

By the time the district judge ruled (let alone when the Supreme Court issued its opinion), it was agreed that the Biden program, which was undertaken largely to prevent misinformation about Covid-19, had voluntarily come to an end.

Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch. They argued that one of the social-media users had sufficiently alleged a connection between a removed post and a government demand suffice for standing. But they had a larger, valid point, , on which I find myself in some agreement, although I rarely agree with Justice Alito on anything.

This is how Alito described the effect of the majority’s decision: “For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”

The government vigorously disputed the claim of unrelenting pressure, arguing that the president isn’t simply permitted under the First Amendment, but almost obligated, to make his views known on controversial matters of national importance, which surely included the Covid-19 pandemic.

The government’s brief acknowledged that improper coercion was different, but it argued the conduct here was safely on the proper persuasion side of the line.

And even if one or two officials went too far on occasion, that wouldn’t justify lower courts’ orders that applied to dozens of officials, and broadly prohibited what the Biden administration saw as an effort necessary to combat Covid-19 and to communicate its views to social media platforms more generally.

Assume that Alito is right on the merits and the Biden administration had a program that unlawfully coerced social media platforms to follow its directions to take down opposing viewpoints, a classic First Amendment violation.

The barriers to obtaining an injunction are, as the majority recognized, those erected by the City of Los Angeles. If the Black youth in that case, who had been the victim of an allegedly unconstitutional chokehold, couldn’t obtain injunctive or even declaratory relief, the majority was surely right to deny it here.

The plaintiffs in Murthy didn’t seek money damages, almost certainly because all the defendants would have been able to defend that claim based on qualified immunity. Alito’s point is that such an outcome ̶ at least in these circumstances ̶ is intolerable under the rule of law.

On that point, I agree with Alito: If the government is accused of serious transgressions of law, it should, on its own, and when sued over their legality, defend on the merits, and the federal courts shouldn’t duck them on grounds of standing.

The problem that Alito faced might be referred to as self-inflicted, in part because of the opinion he authored in Clapper v. Amnesty Int’l USA finding no standing for plaintiffs. There, government officials were allowed under the Foreign Intelligence Surveillance Act to acquire intelligence against non-US persons reasonably believed to be located outside the US.

The plaintiffs were US persons whose work allegedly required them to communicate on sensitive matters with individuals who they believed were “likely targets of surveillance.” The plaintiffs sought a declaration this was unconstitutional.

Like the outcome in Murthy, a finding of no standing for these plaintiffs almost certainly meant no standing for anyone else, a result that a conservative majority of the court finds acceptable or at least acceptable in some cases.

The court should relax its standing requirement considerably when the US government has alleged to have violated the law, especially the Constitution. I may not like the result if the court reached the merits in some cases, although not in Murthy, where the Biden administration may have overstepped the law in at most a few cases). But I would be willing to accept that result if the government could no longer use the defense of lack of standing to avoid having to defend the merits.

If the law of standing is to remain more or less as it is, it shouldn’t be too much to expect the justices to apply it consistently and not object only when they would like to reach the merits to decide the case in favor of the particular plaintiffs before them.

The case is Murthy v. Missouri, US, No. 23-411, decided 6/26/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Alan Morrison is GW Law’s associate dean for public interest and public service law and professorial lecturer in law.

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