Motion for preliminary injunction granted in part and denied in part, Missouri v. Biden, No. 22-cv-1213 (W.D. La., July 4, 2023); injunction affirmed in part, reversed in part, vacated in part, and modified in part, No. 23-30445 (5th Cir., October 3, 2023); injunction stayed and certiorari granted sub nom.Murthy v. Missouri, 601 U.S. ____ (October 20, 2023).
Questions presented
(1) Whether respondents have Article III standing; (2) Whether the government's challenged conduct transformed private social-media companies' content-moderation decisions into state action and violated respondents' First Amendment rights; and (3) Whether the terms and breadth of the preliminary injunction are proper.
Holding
Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.
On July 4, 2023, Judge Terry A. Doughty issued a preliminary injunction prohibiting several agencies and members of the Biden administration from contacting social media services to request the blocking of material, with exceptions for material involving illegal activity. On appeal, the Fifth Circuit Court of Appeals found that there had been some coercion in the government's contact with social media companies in violation of the First Amendment, but narrowed the extent of Doughty's injunction to block any attempts by the government to threaten or coerce moderation on social media. The U.S. Supreme Court initially stayed the Fifth Circuit's order, then granted review of the case by writ of certiorari. On June 26, 2024, the Court ruled 6–3 that the states lacked standing to bring suit.
Background
Since around 2020, Missouri Attorney General (at the time) Eric Schmitt had been filing numerous lawsuits against the Biden administration, with a total of 26 suits as of October 2022. According to Schmitt's senate campaign website, these suits were filed to hold the Biden administration accountable, while Schmitt later said "The Attorney General's Office standing in between Missourians and a radical, overreaching government is a hallmark of federalism, and states have a vital duty to keep the federal government in check."[1] Targets of Schmitt's lawsuits included the administration's policies on oil and gas production, Biden's planned debt forgiveness of student loans, and mask mandates during the COVID-19 pandemic.[1]Missouri v. Biden was one of several high-profile lawsuits Missouri Attorney GeneralEric Schmitt filed against the Biden administration.[1][2]
In 2022, Elon Musk bought out Twitter and significantly altered the way it operated. He also worked with independent journalists to release the "Twitter Files", a series of internal communications that Musk and the journalists assert show that parts of the U.S. government were working with Twitter to suppress free speech related to election fraud and misinformation about the pandemic.[3][4] While legal analysts, speaking with The New York Times, believed that the steps Twitter took to moderate content after contact by the U.S. government were not censorship, many Republicans believed the Twitter Files proved their views were being censored.[5] The Republican-controlled House of Representatives held a set of hearings in March 2023 about the Biden administration "weaponizing" social media for its own purposes. Schmitt (now a U.S. senator) and Louisiana Attorney General Jeff Landry (now the governor of Louisiana) were among those who testified before the committee with information from their case's discovery process, bringing their ongoing lawsuit greater public attention.[6][7]
Filing and depositions
The lawsuit alleges that President Joe Biden and his administration were "working with social media giants such as Meta, Twitter, and YouTube to censor and suppress free speech, including truthful information, related to COVID-19, election integrity, and other topics, under the guise of combating 'misinformation'."[8] The lawsuit was co-filed with Louisiana's Attorney General Jeff Landry in May 2022 in the United States District Court for the Western District of Louisiana. Additional plaintiffs were added several months later, including Jim Hoft, owner of The Gateway Pundit, a conservative publication,[9] and Jay Bhattacharya and Martin Kulldorff, academics who co-authored the Great Barrington Declaration, which questioned the government's handling of the COVID-19 pandemic.[10]
Hearings for the case were held in May 2023. Judge Doughty issued his ruling on July 4, 2023, issuing a preliminary injunction against several Biden administration officials from contacting social media services for "the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech."[14] In his 155-page ruling, Doughty wrote: "The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country."[15] He continued: "If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history. The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition."[14]
The U.S. Department of Justice filed its intent to appeal to the United States Court of Appeals for the Fifth Circuit the next day.[16] The Department of Justice sought a stay of Doughty's injunction, saying that it would prevent them from "working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes" ahead of the 2024 elections.[18] Legal experts, speaking to Reuters, said that while the case has merit, Doughty's preliminary injunction will face tough legal challenges on appeal.[19] On July 14, 2023, the Fifth Circuit granted a temporary administrative stay of the injunction until further order.[20]
Appellate decision
On September 8, 2023, the Fifth Circuit ruling upheld the district court ruling against the Biden administration. The court found that some of the communications between the federal government and the social media companies to try to fight alleged COVID-19 misinformation "coerced or significantly encouraged social media platforms to moderate content", which violated the First Amendment.[21] But the court also ruled that Doughty's preliminary injunction was too broad, as it blocked some legal social media content created by government, and narrowed the injunction to prevent the government from taking "actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies' decision-making processes."[21][22] The court placed enforcement of the injunction on hold for ten days to allow any appeals to be filed.[21][23] Supreme Court Justice Samuel Alito granted a temporary stay of the order on September 14, 2023, lasting initially until September 23 and then extended to September 27, to give both parties the ability to argue further on the appeal.[24][25] The Fifth Circuit Court of Appeals expanded the injunction issued in September to include the Cybersecurity and Infrastructure Security Agency (CISA), ruling that it used frequent interactions with social media platforms "to push them to adopt more restrictive policies on election-related speech".[26]
Supreme Court
In October 2023, the Supreme Court agreed to hear Murthy v. Missouri.[27] The Court also lifted the injunctions set by the lower courts, allowing the federal government to continue to contact social media companies without restrictions while the case continues. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the lifting of the injunctions, with Alito writing, "Government censorship of private speech is antithetical to our democratic form of government, and therefore today's decision is highly disturbing."[28] The Court heard oral argument on March 18, 2024.[29]
The Supreme Court issued its decision on June 26, 2024. The 6–3 majority determined that neither the states nor other respondents had standing under Article III, reversing the Fifth Circuit decision. Justice Amy Coney Barrett wrote the opinion, stating: "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."[30]
Justice Alito wrote the dissent, joined by Thomas and Gorsuch. He wrote that this was "one of the most important free speech cases to reach this Court in years",[30] that the respondents had brought enough evidence to suggest the government's actions were unconstitutional, but that the Court "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. That is regrettable."[30]
