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Opinions

Majority Opinion Author

Amy Coney Barrett

SUPREME COURT OF THE UNITED STATES

Syllabus

MURTHY, SURGEON GENERAL, et al. v. MISSOURI et al.

certiorari to the united states court of appeals for the fifth circuit

No. 23–411. Argued March 18, 2024—Decided June 26, 2024

Under their longstanding content-moderation policies, social-media platforms have taken a range of actions to suppress certain categories of speech, including speech they judge to be false or misleading. In 2020, with the outbreak of COVID–19, the platforms announced that they would enforce these policies against users who post false or misleading content about the pandemic. The platforms also applied misinformation policies during the 2020 election season. During that period, various federal officials regularly spoke with the platforms about COVID–19 and election-related misinformation. For example, White House officials publicly and privately called on the platforms to do more to address vaccine misinformation. Surgeon General Vivek Murthy issued a health advisory that encouraged the platforms to take steps to prevent COVID–19 misinformation “from taking hold.” The Centers for Disease Control and Prevention alerted the platforms to COVID–19 misinformation trends and flagged example posts. The Federal Bureau of Investigation and Cybersecurity and Infrastructure Security Agency communicated with the platforms about election-related misinformation in advance of the 2020 Presidential election and the 2022 midterms.

Respondents are two States and five individual social-media users who sued dozens of Executive Branch officials and agencies, alleging that the Government pressured the platforms to censor their speech in violation of the First Amendment. Following extensive discovery, the District Court issued a preliminary injunction. The Fifth Circuit affirmed in part and reversed in part. The court held that both the state plaintiffs and the individual plaintiffs had Article III standing to seek injunctive relief. On the merits, the court held that the Government entities and officials, by “coerc[ing]” or “significantly encourag[ing]” the ٴڴǰ’ moderation decisions, transformed those decisions into state action. The court then modified the District Court’s injunction to state that the defendants shall not coerce or significantly encourage social-media companies to suppress protected speech on their platforms.

Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant. Pp. 8–29.

(a) Article III’s “case or controversy” requirement is “fundamental” to the “proper role” of the Judiciary. Raines v. Byrd, 521 U.S. 811, 818. A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue,” .—i.., that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling,” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409. Here, the plaintiffs’ theories of standing depend on the ٴڴǰ’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. Instead, they seek to enjoin the Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.

The one-step-removed, anticipatory nature of the plaintiffs’ alleged injuries presents two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41–42. Second, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” ’S v. Littleton, 414 U.S. 488, 496. Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden. On the record in this case, that is a tall order. Pp. 8–10.

(b) The plaintiffs’ primary theory of standing involves their “direct censorship injuries.” Pp. 10–26.

(1) The Court first considers whether the plaintiffs have demonstrated traceability for their past injuries. Because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value. The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. And while the record reflects that the Government defendants played a role in at least some of the ٴڴǰ’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. The Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence. The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole. Because “standing is not dispensed in gross,” TransUnion LLC v. Ramirez, 594 U.S. 413, 431, “plaintiffs must demonstrate standing for each claim they press” against each defendant, “and for each form of relief they seek,” ibid. This requires a threshold showing that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic. Complicating the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than its own judgment, is the fact that the platforms began to suppress the plaintiffs’ COVID–19 content before the defendants’ challenged communications started. Pp. 10–14.

(2) The plaintiffs fail, by and large, to link their past social-media restrictions and the defendants’ communications with the platforms. The state plaintiffs, Louisiana and Missouri, refer only to action taken by Facebook against a Louisiana state representative’s post about children and the COVID–19 vaccine. But they never say when Facebook took action against the official’s post—a critical fact in establishing a causal link. Nor have the three plaintiff doctors established a likelihood that their past restrictions are traceable to either the White House officials or the CDC. They highlight restrictions imposed by Twitter and LinkedIn, but point only to Facebook’s communications with White House officials. Plaintiff Jim Hoft, who runs a news website, experienced election-related restrictions on various platforms. He points to the FBI’s role in the ٴڴǰ’ adoption of hacked-material policies and claims that Twitter restricted his content pursuant to those policies. Yet Hoft’s declaration reveals that Twitter took action according to its own rules against posting private, intimate media without consent. Hoft does not provide evidence that his past injuries are likely traceable to the FBI or CISA. Plaintiff Jill Hines, a healthcare activist, faced COVID–19-related restrictions on Facebook. Though she makes the best showing of all the plaintiffs, most of the lines she draws are tenuous. Plus, Facebook started targeting her content before almost all of its communications with the White House and the CDC, thus weakening the inference that her subsequent restrictions are likely traceable to Government-coerced enforcement of Facebook’s policies. Even assuming Hines can eke out a showing of traceability, the past is relevant only insofar as it predicts the future. Pp. 14–21.

(3) To obtain forward-looking relief, the plaintiffs must establish a substantial risk of future injury that is traceable to the Government defendants and likely to be redressed by an injunction against them. The plaintiffs who have not pointed to any past restrictions likely traceable to the Government defendants (i.e., everyone other than Hines) are ill suited to the task of establishing their standing to seek forward-looking relief. But even Hines, with her superior showing on past harm, has not shown enough to demonstrate likely future harm at the hands of these defendants. On this record, it appears that the frequent, intense communications that took place in 2021 between the Government defendants and the platforms had considerably subsided by 2022, when Hines filed suit. Thus it is “no more than conjecture” to assume that Hines will be subject to Government-induced content moderation. Los Angeles v. Lyons, 461 U.S. 95, 108.

The plaintiffs’ counterarguments are unpersuasive. First, they argue that they suffer “continuing, present adverse effects” from their past restrictions, as they must now self-censor on social media. ’S, 414 U. S., at 496. But the plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U. S., at 416. Second, the plaintiffs suggest that the platforms continue to suppress their speech according to policies initially adopted under Government pressure. But the plaintiffs have a redressability problem. Without evidence of continued pressure from the defendants, the platforms remain free to enforce, or not to enforce, their policies—even those tainted by initial governmental coercion. And the available evidence indicates that the platforms have continued to enforce their policies against COVID–19 misinformation even as the Federal Government has wound down its own pandemic response measures. Enjoining the Government defendants, therefore, is unlikely to affect the ٴڴǰ’ content-moderation decisions. Pp. 21–27.

(c) The plaintiffs next assert a “right to listen” theory of standing. The individual plaintiffs argue that the First Amendment protects their interest in reading and engaging with the content of other speakers on social media. This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech. While the Court has recognized a “ First Amendment right to receive information and ideas,” the Court has identified a cognizable injury only where the listener has a concrete, specific connection to the speaker. Kleindienst v. Mandel, 408 U.S. 753, 762. Attempting to satisfy this requirement, the plaintiffs emphasize that hearing unfettered speech on social media is critical to their work as scientists, pundits, and activists. But they do not point to any specific instance of content moderation that caused them identifiable harm. They have therefore failed to establish an injury that is sufficiently “concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560. The state plaintiffs assert a sovereign interest in hearing from their citizens on social media, but they have not identified any specific speakers or topics that they have been unable to hear or follow. And States do not have third-party “standing as parens patriae to bring an action against the Federal Government” on behalf of their citizens who have faced social-media restrictions. Haaland v. Brackeen, 599 U.S. 255, 295. Pp. 27–28.

83 F. 4th 350, reversed and remanded.

Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Kavanaugh, and Jackson, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas and Gorsuch, JJ., joined.

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