Murthy v. Missouri concerns whether the federal government’s involvement in influencing content moderation choices at public social media companies, such as Facebook, YouTube, and X (formerly Twitter), violated the First Amendment’s Free Speech Clause¹. The case also addresses what individuals and entities are sufficiently aggrieved by the government action to meet constitutional requirements to have standing to sue in federal courts.

The Murthy litigation began when the States of Missouri and Louisiana, three doctors, a news website, and a health care activist filed suit against a group of federal government agencies and officials alleging that the government violated the Free Speech Clause by coercing and significantly encouraging social media companies to remove and downgrade—or essentially censor—users’ content. The Free Speech Clause only applies when there is state action, and therefore generally does not apply to private entities, but there are a select set of scenarios when private conduct can qualify as state action. When the government compels a private party to take a particular course of action, for example, First Amendment restrictions may apply to private parties’ actions as if the government had carried them out.

During lower court proceedings, the United States Court of Appeals for the Fifth Circuit concluded that United States officials and agencies had so entangled themselves in the platforms’ decision-making process that the social media companies’ content moderation decisions could be treated as state action subject to the First Amendment. Based on this finding, the Fifth Circuit upheld elements of a preliminary injunction barring a set of United States government officials and agencies from engaging in certain types of communications about social media content moderation.

The United States contends that the Fifth Circuit decision conflicts with a fundamental First Amendment principles that allow the federal government to ‘provide the public with information and to ‘advocate and defend its own policies.’ The government also argues that the injunction imposes unprecedented limits on federal officials’ ability to address matters of public concern, national security, and public health, and that it violates separation-of-powers principles by making federal judges the overseers of the Executive Branch’s communication with private companies.

The United States also makes a threshold legal argument that federal courts lack jurisdiction over the case because the plaintiffs do not have standing to sue. The doctrine of standing requires that plaintiffs must have suffered (or risk imminently suffering) a concrete and particularized injury that is traceable to the opposing party’s alleged wrongdoing and that the court can redress. The doctrine is derived from the requirement in Article III, Section 2, Clause 1² that federal courts may only hear cases or controversies. According to the United States, the plaintiffs lack standing because they did not show that adverse content moderation decisions were fairly traceable to the government or would be resolved by injunctive relief.

The United States requested that the Supreme Court stay the lower court injunction that barred the government from certain communications with social media companies while the case is on appeal. In an unsigned order, the Supreme Court granted that request, meaning the United States is not currently under a court-ordered restriction on its communications. Justices Gorsuch and Thomas joined an opinion by Justice Alito dissenting from the grant of a stay and expressing the fear that the decision, although temporary, could be viewed as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.

• QUESTIONS PRESENTED:
• Whether respondents have Article III standing;
• Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and
• Whether the terms and breadth of the preliminary injunction are proper.
• CONSTITUTIONAL PROVISIONS IMPLICATED:
• First Amendment

1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ↩︎
2. (The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)
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