Murthy v. Missouri: Standing, Coercion, and Open Questions

In Murthy v. Missouri, decided June 26, 2024, the Supreme Court ruled 6–3 that the states and individuals challenging federal officials’ communications with social media companies did not have legal standing to sue. The decision dissolved a sweeping injunction that had barred the White House, the Surgeon General, the CDC, the FBI, and the Cybersecurity and Infrastructure Security Agency from pressuring platforms to remove content. It did not decide whether that pressure violated the First Amendment. That question is still open.¹

What the Lawsuit Was About

Missouri, Louisiana, and five individual plaintiffs sued dozens of federal officials, arguing that the government had run a coordinated campaign to get Facebook, Twitter, and LinkedIn to suppress speech it disliked. The individual plaintiffs included epidemiologists Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, who had publicly criticized mainstream COVID-19 policies; Jim Hoft of the conservative news site The Gateway Pundit; and Jill Hines, a healthcare activist whose Facebook content was repeatedly restricted.¹

The record was thick with emails. White House staff pressed platforms to remove specific posts “ASAP” and demanded data on what “interventions” the companies were taking. The Fifth Circuit characterized the tone as “persistent and angry,” with officials phrasing requests “virtually as orders.”² Surgeon General Vivek Murthy issued a formal advisory urging platforms to stop COVID-19 misinformation “from taking hold.” FBI and CISA officials flagged election-related content ahead of the 2020 and 2022 elections. Platforms gave the government expedited reporting channels, downgraded or removed flagged posts, and in some cases revised their policies after federal briefings.¹

A federal judge in Louisiana agreed with the plaintiffs and issued a preliminary injunction on July 4, 2023, barring federal officials from urging, encouraging, or pressuring platforms to restrict protected speech. The Fifth Circuit narrowed the order but kept its core, finding that several federal actors had “coerced” or “significantly encouraged” the platforms in violation of the First Amendment. The Supreme Court stayed the injunction and took the case.

Why the Supreme Court Threw the Case Out

Justice Amy Coney Barrett wrote the majority opinion. Before a federal court can rule on whether the government violated the Constitution, the plaintiff has to satisfy Article III standing: a concrete personal injury, traceable to the defendant’s conduct, that a court order can actually fix. The plaintiffs fell short on the second and third requirements.¹

The Traceability Problem

The lower courts, Barrett wrote, had treated the government, the plaintiffs, and the platforms as three monolithic blocks: the government pressured platforms, the platforms restricted these speakers, therefore the government caused the restrictions. That reasoning was too general. “Standing is not dispensed in gross.” Each plaintiff had to link a particular defendant’s pressure to a particular platform’s decision to restrict that plaintiff’s specific speech.¹

The record didn’t support those specific links. Facebook had begun expanding its COVID-19 content policies in early February 2021, before the White House started the communications at issue. Jill Hines, the plaintiff with arguably the strongest case, had her Facebook pages targeted before nearly all of the challenged federal contacts with Facebook. Jim Hoft claimed the FBI caused Twitter to restrict his content under hacked-material policies, but Twitter’s own records showed it acted under a different rule against posting private, intimate media without consent, a policy with no evident connection to the FBI. Platforms, in short, had their own reasons to moderate.

The Redressability Problem

Even where past injuries might be traced to government pressure, the plaintiffs also had to show a real risk of future harm that an injunction could reduce. That showing was too speculative. The platforms were not parties to the lawsuit and would not be bound by any order. Without evidence of an ongoing pressure campaign, there was no reason to think that telling federal officials to stop communicating would change how Facebook or Twitter moderated content going forward.¹

The Dissent

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, called this “one of the most important free speech cases to reach this Court in years” and accused the majority of ignoring the record. He argued that Jill Hines easily met all three standing requirements: Facebook was actively restricting her COVID-related posts when she filed suit, the White House had prompted Facebook to expand its censorship policies, and an injunction against the government would reduce the risk that Facebook would keep suppressing her speech.¹

On the merits the majority never reached, Alito described the government’s conduct as a “covert scheme of censorship” carried out through “aggressive questions, complaints, insistent requests, demands, and thinly veiled threats of potentially fatal reprisals.” He pointed to three factors: officials who spoke for and could influence the President, messages that read as orders backed by implicit threats, and Facebook’s responses, which he said “resembled that of a subservient entity determined to stay in the good graces of a powerful taskmaster.”¹

Where the Coercion Line Actually Sits

Murthy did not draw the line between lawful persuasion and unconstitutional coercion. A companion case decided the same term did some of that work. In NRA v. Vullo, decided unanimously on May 30, 2024, the Court held that the NRA had plausibly alleged a First Amendment violation when a New York financial regulator pressured insurance companies to cut ties with the organization because of its gun-rights advocacy.³

Justice Sonia Sotomayor’s opinion described the constitutional line in practical terms. A government official crosses into coercion when the official’s conduct “could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech.” The threat need not be explicit, and the more power the official holds over the private party, the less pressure it takes to cross the line.³ That standard is now the working framework for jawboning claims, but no court has applied it to the federal officials whose conduct Murthy challenged.

What Is Still Open After Murthy

The majority was explicit that because it decided the case on standing, it expressed “no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.”¹ The constitutional question that drove the litigation is unresolved.

Practically, the ruling leaves federal officials free to keep communicating with social media companies about content moderation. It does not declare those communications lawful. It says the plaintiffs in this case were not the right people to challenge them on this record. The standing hurdle the Court set is high but procedural.

Broad challenges to government pressure on platforms will now face steep odds. A user banned in the wake of a general federal campaign against “misinformation” will struggle to trace the ban to any particular official’s email. A plaintiff who can point to a specific message from a named official demanding the removal of a specific post, followed by that post’s removal, would present a different case. The Court signaled as much by emphasizing what was missing from this one.

1
Supreme Court of the United States. Murthy v. Missouri
2
United States Court of Appeals for the Fifth Circuit. Missouri v. Biden
3
Supreme Court of the United States. National Rifle Association of America v. Vullo