Today, the U.S. Supreme Court ruled 6-3 in Murthy v. Missouri that challengers alleging Biden administration officials “coerced” social media companies to remove content the government viewed as unfavorable did not have the legal right to sue and did not rule on the merits. The High Court determined neither the Louisiana and Missouri attorneys general nor the five private individuals who brought the lawsuit had standing to seek an injunction against any of the government defendants.

Specifically, the challengers attributed the restrictions they experienced on social media to U.S. Surgeon General Vivek Murthy, White House Press Secretary Karine Jean-Pierre and dozens of other Biden administration officials from The White House, FBI, and Centers for Disease Control and Prevention (CDC). They alleged a “coordinated campaign” between the officials and Big Tech companies, such as Facebook, Twitter, and Google, to censor content dealing with opposition to government narratives about COVID-19, the validity of the 2020 election, the Hunter Biden laptop story, abortion, gender discussions, and more.

The Supreme Court noted that while the social media platforms had their own “independent incentives to moderate content,” the government was indeed influential in those choices but rejected the assertion that there was a “concrete link” between the free speech injuries and the government. 

“To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.”

Justice Amy Coney Barrett authored the majority opinion stating it was a “tall order” to associate government actions with the injuries or even with “a substantial risk of future injuries.” 

“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction,” wrote Justice Barrett.

“The plaintiffs treat the defendants as a monolith, claiming broadly that ‘“the governmen[t]’” continues to communicate with the platforms about ‘“content-moderation issues,”’ continued Justice Barrett. “But we must confirm that each Government defendant continues to engage in the challenged conduct, which is ‘coercion’ and ‘significant encouragement,’ not mere “communication’… “The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from ‘exercis[ing such] general legal oversight’ of the other branches of Government.” 

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the majority opinion. Justice Alito in his dissent stated that the evidence was “more than sufficient” to establish the right to sue.

“These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief [the plaintiff] sought was an available and suitable remedy,” wrote Justice Alito. “This evidence was more than sufficient to establish [the plaintiff’s] standing to sue, and consequently, we are obligated to tackle the free speech issue that the case presents. The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.” 

Justice Alito quoted another Supreme Court decision from earlier this month which stated that government efforts to “dictate” or “suppress" protected speech are “presumptively unconstitutional” even when it involves a “third-party intermediary.” 

“As we said there, ‘a government official cannot do indirectly what she is barred from doing directly,’ and while an official may forcefully attempt to persuade, ‘[w]hat she cannot do . . . is use the power of the State to punish or suppress disfavored expression,’” wrote Justice Alito. “If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years.” 

Liberty Counsel filed an amicus brief in the case to the High Court which argued that the biggest threat to our First Amendment right to free speech today is the government and big companies working together to remove content they disagree with to “stifle dissent” against “official” government narratives.

Liberty Counsel Founder and Chairman Mat Staver said, “Censoring viewpoints is a direct affront to free speech and offensive to the First Amendment. Once standing can be established, this government censorship of social media will end.”