Censorship and the Upcoming Election After Murthy

Social media platforms have been curtailing conservative speech even before the COVID-19 pandemic and 2020 election that precipitated the primary claim in Murthy v. Missouri, but does that necessarily mean that government coercion does not significantly affect and restrict speech when it continually harasses social media companies to increase its restrictions? It doesn’t, and the Court’s recent 6-3 opinion in Murthy unfortunately ensures that government officials could still have free reign to enact the same, chilling coercive strategies against social media companies—and consequently the American people—in the upcoming election cycle.

The 2020 election season and the COVID-19 pandemic brought significant, heated public debate; at least, it would have been significant, if not for the government’s pressuring social media companies into censoring Americans’ First Amendment-protected speech. This pressure campaign caused one of the most egregious oversteps into free expression in years;[1] yet, the Court has effectively certified such control by making it virtually impossible for any potential plaintiff to have standing on this issue. The government did this through a multitude of communications between the social media companies and various government officials often including not-so-veiled threats concerning the companies’ Section 230 immunity status and the possibility for antitrust lawsuits.[2] Plaintiffs contended that the government’s actions resulted in the censorship of their speech, but the government claimed that the social media companies would have enacted the same policies and enforcement mechanisms regardless of government action.

The Court’s opinion, written by Justice Barrett, begins by distancing the plaintiffs’ past injuries from the government action complained of to make the plaintiffs’ future injuries—which the plaintiffs sought an injunction against—less credible. The Court does this with the goal of dismissing the case for lack of standing, a long-standing prerequisite enumerated in Article III of the Constitution that must be satisfied before bringing a lawsuit.[3]

Barrett sufficiently skewed the facts and the legal precedent to dismiss the case, likely for grounds not based in legal reasoning.[4] Barrett noted that the “primary weakness . . . is the lack of specific causation findings with respect to any discrete instance of content moderation.” However, she cites no case requiring the “specific causation” she wants to see.[5] Despite the lack of legal support for its reasoning, the Court rests its decision that the plaintiffs did not show past harm on that mostly unsupported reasoning.

Still, past harm merely makes it easier to plead future harm but does not entirely preclude a showing of future harm. Yet, the Court found that “without proof of an ongoing pressure campaign, it is entirely speculative that the platforms’ future moderation decisions will be attributable, even in part, to the [government].”[6] In writing the Opinion of the Court, Barrett quotes Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., which quotes Whitmore v. Arkansas, which quotes Babbit v. UFW National Union, (finally) quotes Pennsylvania v. West Virginia, which is where one must look to understand what it means for “allegedly wrongful behavior [to] likely occur or continue.”[7]

Pennsylvania v. West Virginia addressed a law passed by West Virginia that would “lay[] on every pipeline company a positive duty.”[8] However, the pipe companies were not the ones who brought the suit; rather, Pennsylvania and Ohio feared the effect it would have on interstate commerce. Despite the action being rooted in interstate commerce, the Court ruled that the State and the Commonwealth had standing for future harm.[9] The law also created a commission with authority to enforce the law through various means, which West Virginia used to argue that the states could not have been harmed since the commission had yet to take any action.[10] However, in Pennsylvania, the court noted that “[n]o order of the commission is required to give it precision or make it obligatory, and it leaves nothing to the discretion of those who are to enforce it.”[11] Much the same could be said of the case at hand.

Here, no action by Facebook is required to make the policies obligatory, and the policies leave little discretion to Facebook’s enforcement mechanism, which is primarily accomplished by a computer model (AI) without human intervention.[12] Additionally, Facebook would be highly unlikely to reverse these policies without the injunction since the government could begin another “years-long pressure campaign” with zero consequences.[13] As Justice Alito astutely pointed out in his dissent, “. . . when the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook’s censorship policies. ”[14] Those Facebook policies were quickly dismissed by the Court as not applicable to the future harm requirement almost entirely because Facebook had preexisting policies when the government started its “pressure campaign.”[15] However, it is undeniable that the government played a significant role in coercing Facebook into enacting stricter policies.[16]

Thus, when traced back to the case where the term’s meaning originated, the requisite showing that “the defendants’ ‘allegedly wrongful behavior w[ould] likely occur or continue’” does not require the defendant to be actively involved in “an ongoing pressure campaign” for the plaintiffs to show more than an “entirely speculative” future harm.[17] Rather, it is more than enough to show that “White House officials successfully pushed Facebook to tighten its censorship policies, and those policies had implications for [the plaintiff]” because “it would be silly to assume that the threats lost their force merely because White House officials opted not to renew them on a regular basis.”[18]

If one reads only the case syllabus, it would be simple to conclude that, since the government is not actively involved in coercion, there is no harm currently affecting the general American public. That is why the Court ruled the plaintiffs had no standing, right? Wrong![JH1]  While that is how the Court ruled, Barrett’s implicit prediction is an unlikely one.[19] First, the harm was created when the government forced Facebook to enact stricter policies, the effects of which will linger until the policies are relaxed.[20] “Second, the White House threats did not come with expiration dates,” which, again, indicates that the government’s coercion still has the same effect today as it did when the government was actively participating in said coercion.[21] Thus, despite the Court’s ruling making it near impossible for a plaintiff to have standing as the Court would require, the harm will continue.[22]

The continuance of the harm is evidenced by the social media company’s disincentive to relax their content moderation policies. Thus, conservatives may once again experience censorship during the election cycle due to the potential for government coercion—especially since the previous election censorship coercion occurred when Trump was in office, and the person who was favored by the censorship—Joe Biden—is now running the Presidential administration. The Court has failed the American people because, instead of ruling on the merits of a monumental case against censorship, “[t]he Court . . . shirk[ed] [its] duty and thus permitt[ed] the successful campaign of coercion . . . to stand as an attractive model for future officials who want to control what the people say, hear, and think.”[23]

Written by Tyler Dunn, 2024 Summer Intern

[1] See Murthy v. Missouri, No. 23-411, slip op. at 1-2 (S. Ct., June 26, 2024) (Alito, J., dissenting).

[2] Id. at 4, 23 (majority opinion); Id. at 25, 28-29 (Alito, J., dissenting). Officials also implied that Facebook’s unwillingness to comply led to the “insurrection” on January 6 and that their lack of action was “killing people.” Id. at 3-4 (majority opinion); Id. at 6 (Alito, J., dissenting).

[3] See Murthy, slip op. at 8-9 (majority opinion).

[4] See Id. at 23 (Alito, J., dissenting) (“[The doctrine of Article III standing] is cheapened when the rules are not evenhandedly applied.”).

[5] Id. at 11 (majority opinion). See also Id. at 21 (Alito, J., dissenting).

[6] Id. at 22 (majority opinion) (emphasis added). Contra Id. at 21 (Alito, J., dissenting) (“Indeed, the record suggests that Facebook did not feel free to chart its own course when Hines sued; rather, the platform had promised to continue reporting to the White House and remain responsive to its concerns for as long as the officials requested.”).

[7] See Id. at 21-22 (emphasis added by Barrett, not author, but not acknowledged in the opinion) (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quoting Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923))))). It is important to note that generally, only one level of recursion is required when adding parenthetical information regarding cases being quoted, quoting other cases; however, the author has included it here because it is crucial to understanding the quote used in the opinion primarily at issue here. Additionally, it should be noted that despite the history of the term used by Barrett extending back to 1923, she failed even to use one level of recursion, not making any notation that the quote from Laidlaw Environmental was quoting another case, which is generally unacceptable in the academic community. See The Yale Law Journal Volume 128 Style Sheet, 4-5, https://www.yalelawjournal.org/files/128StyleSheet_xidapho2.pdf.

[8] Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923).

[9] Id. at 594.

[10] Id. at 593-94.

[11] Id. at 593.

[12] How does Facebook use artificial intelligence to moderate content?, Facebook, https://www.facebook.com/help/1584908458516247 (last visited June 28, 2024).

[13] Missouri v. Biden, 83 F.4th 350, 370 (5th Cir. 2023).

[14] Murthy, slip op. at 21 (Alito, J., dissenting).

[15] Id. at 12 (majority opinion).

[16] See Id. at 21 (Alito, J., dissenting).

[17] Id. at 22 (majority opinion) (quoting Laidlaw Envt’l, 528 U.S. at 190).

[18] Id. at 18, 21 (Alito, J., dissenting) (citations omitted).

[19] See Id. at 4 (Alito, J., dissenting) (“[The coercion] was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.”).

[20] Id. at 21.

[21] Id.

[22] The Court found that future harm cannot exist where the government is not actively engaged in a “campaign of social-media censorship,” which severely limits the time a plaintiff—even if the plaintiff could surmount the hurdle raised by the Court’s past harm requirement—has to bring such an important lawsuit up to the Court. See Id. at 11-12, 16, 20-22, 24-25 (majority opinion) (quoting the appellate record).

[23] Id. at 4.