Despite Murthy Loss, State AGs Will Advance Theories of Standing

State attorneys general have pushed the limits on standing theories as they challenge hot-button issues across the political spectrum, and this term the US Supreme Court has set some boundaries. Despite some setbacks at the high court this term, we are likely to see state attorneys general continue to test new standing theories.

Last week, the Supreme Court ruled in Murthy v. Missouri, a First Amendment case challenging federal government communications with social media platforms to remove certain types of content related to, among other topics, mask mandates, Covid-19, and the 2020 election.

Five private plaintiffs brought the lawsuit alleging their posts had been removed or otherwise suppressed by the social media platforms, joined by attorneys general of Missouri and Louisiana.

The states’ assertions of injury exemplify the broad standing theories often brought by state attorneys general. Because states are almost always impacted in some form by particular laws and regulations, attorneys general often have latitude to craft broader theories of harm than other plaintiffs.

Here, the attorneys general put forth two broad injuries: They argued social media platforms’ removal of state representatives’ posts violated states’ right to speak, and right to listen to their constituents by accessing their unfiltered social media posts.

The Fifth Circuit agreed with the states on both counts, holding “the State Plaintiffs sustain a direct injury when the social-media accounts of state officials are censored due to federal coercion.”

The Fifth Circuit also endorsed the states’ “right to listen” theory, writing that “federally coerced censorship harms the State Plaintiffs’ ability to listen to their citizens as well,” and “this right to listen is ‘reciprocal’ to the State Plaintiffs’ right to speak and constitutes an independent basis for the State Plaintiffs’ standing here.”

In other cases, courts have ruled that similarly expansive theories of harm do confer standing on states.

In Department of Commerce v. New York, for example, a group of states successfully argued they had standing to contest reinstatement of a citizenship question on the census because the states had a “sufficient likelihood” of losing federal funding (given evidence of lower response rates by noncitizen households and the likely decrease in funding as a result of a population undercount).

And earlier this month, Texas district court judge Matthew Kacsmaryk held that four states had standing to contest a Bureau of Alcohol, Tobacco, Firearms, and Explosives rule on the basis that the rule would reduce tax revenues by “prohibit[ing] otherwise eligible persons from obtaining a Federal Firearms License (‘FFL’), thereby reducing total attendance and sales at gun shows.”

Murthy highlights limits of the state standing doctrine. The court reversed the lower court’s decision on standing grounds in a 6-3 opinion, holding that neither the private plaintiffs nor the states asserted sufficient evidence of injury.

The holding, however, was specific to the particular case: The court concluded the state plaintiffs failed to prove that removal of a state representative’s post was causally related to federal government action. The court also held the states failed to demonstrate how past removals of social media posts gestured at a “substantial risk of future injury” necessary to support forwarding-looking injunctive relief.

Because the state plaintiffs’ standing theory faltered on these preliminary grounds, the Supreme Court didn’t reach the question of whether “an injury to a state representative counts as an injury to the State.” The court also handily dismissed the states’ “right to listen” theory, concluding they “have not identified any specific speakers or topics that they have been unable to hear or follow.”

Despite the states’ loss in Murthy, state attorneys general will likely continue to advance broad theories of standing. The issue is already festering in another hot-button case—FDA v. Alliance for Hippocratic Medicine—which the court disposed of on standing grounds earlier this month.

Three states already intervened in district court as plaintiffs to supply alternative theories of standing predicated on aggregate monetary injury and harm to the states’ sovereign interests in making and enforcing their laws. It’s unclear whether their broader theory of standing will breathe life back into a case the Supreme Court held lacks Article III standing.

Taken together, these cases illustrate state attorneys general’s strategic flexibility in advancing expansive narratives of harm. No doubt they will continue to marshal similarly broad theories of injury, particularly when questions of standing implicate high-stakes legal outcomes that are particularly important to their policy goals.

Murthy may represent a judicial curtailment of broad theories of state-standing or it may be an exception to the general rule.

The case is Murthy v. Missouri, U.S., 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.

Author Information

Michelle Kallen and Adam Unikowsky are partners at Jenner & Block.

Peggy Xu is an associate at Jenner & Block.

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