Murthy v. Missouri Lost on Standing, Yet the Record It Built Still Stands

When a case is lost on a technicality, the losing side hears "you were wrong" and the winning side hears "we were right." Both are mistaken. A ruling on standing says only one thing: this plaintiff, on this record, was not the right person to ask this question. The question itself is still sitting on the table, unanswered, waiting for someone better prepared.

That is the situation with Murthy v. Missouri, decided by the Supreme Court on June 26, 2024. Headlines at the time read like a verdict on the merits. They were not. This post sets out what the Court actually decided, what it left open, what the record showed, and what a future plaintiff would have to prove. I will use the method I think the subject deserves: define the terms, state the other side's best case, and then argue point by point.

Terms first

Standing. Article III of the Constitution limits the federal courts to "Cases" and "Controversies." From that language the Court has derived a doctrine: to sue, a plaintiff must show an injury that is concrete and particularized, that is fairly traceable to the defendant's conduct, and that a court order could redress. These three elements are called injury, traceability and redressability.

Jawboning. Informal pressure by government officials on private parties to change their behaviour, short of a formal law or order. Officials call, email, meet, suggest and warn. Whether that is permissible persuasion or impermissible coercion is the heart of the constitutional question.

Preliminary injunction. A court order issued early in a case, before final judgment, to prevent harm while the case proceeds. The test is demanding, because the plaintiff must show a likelihood of success on the merits.

With those terms in hand, the structure of the case becomes clear.

The facts: what the plaintiffs alleged

The plaintiffs were two states, Missouri and Louisiana, and a handful of individuals, including doctors and academics who had opposed official positions on COVID-19 policy and a website operator and an activist. They alleged that federal officials, in the White House, the Surgeon General's office, the Centers for Disease Control, the FBI and other agencies, had pressed social media companies to remove or suppress content about topics such as COVID-19 and elections, and that the companies had complied.

The case is named for the Surgeon General, Vivek Murthy, who was among the defendants. The case was filed in federal court in Louisiana.

The factual record assembled in discovery was large. According to the opinions and the lower courts' findings, it included emails and messages in which federal officials pressed platforms about specific posts and accounts, in some cases using sharp language and asking for quick action and regular reports on what had been done. It also included regular meetings between officials and platform staff, and public statements by officials, including the suggestion that platforms should face consequences if they did not do more. The platforms, for their part, revised some of their content policies during the relevant period, and some of the plaintiffs reported that their posts had been removed or demoted.

I will not pretend that every inference from that record is settled. The platforms had their own policies and their own motives, and some of the emails show a company pushing back. But the core allegation was not frivolous, and a federal judge thought it likely enough to act.

The procedural history

1. July 4, 2023. The federal district court in the Western District of Louisiana, in a lengthy opinion, issued a preliminary injunction that barred a range of federal officials and agencies from various kinds of contact with social media companies about content. The judge described the record as showing a coordinated effort of a troubling kind. The date was widely noted for its symbolism.
2. September 2023. The Fifth Circuit Court of Appeals agreed in substantial part that the government had likely coerced or significantly encouraged the platforms' decisions, which would convert private moderation into state action. But it narrowed the injunction, reducing the list of defendants covered and trimming what the order forbade.
3. October 2023. The Supreme Court stayed the injunction pending its own review and agreed to hear the case.
4. March 2024. Argument. Several justices pressed the plaintiffs on whether they could trace particular removals to particular government requests, and pressed the government on where persuasion ends and coercion begins.
5. June 26, 2024. The decision.

The holding: Justice Barrett for a 6-3 majority

Justice Amy Coney Barrett wrote for the Court, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Jackson. The holding was that neither the individual plaintiffs nor the states had shown standing to seek an injunction.

Her reasoning turned chiefly on traceability and redressability, and it ran in several steps.

First, the plaintiffs were asking for forward-looking relief, an injunction against future conduct. So they had to show a substantial risk that, in the near future, they would suffer an injury that was traceable to a government defendant and that an injunction would prevent. Past injuries alone do not support an injunction.

Second, the record, as the majority read it, did not clearly connect the government's communications to the particular moderation decisions affecting the plaintiffs. The platforms had their own content policies, and in some instances had been moderating the same kinds of content before the government's requests, or in ways the plaintiffs could not show were caused by government pressure rather than the platforms' independent judgment. Barrett wrote that the lower courts had treated the platforms collectively, as though a government request to one company explained the behaviour of all of them, without finding the specific link for each plaintiff.

Third, the majority rejected the argument that the plaintiffs had a free-standing right to listen, to receive other people's speech without government interference. The Court said that theory would allow almost anyone to sue over any restriction on anyone's speech, and it declined to extend standing that far.

Fourth, as to the states, the Court did not accept that the states had shown a direct injury of their own from the alleged pressure.

Notice what the majority did not say. It did not say that the government's contacts were lawful. It did not say that coercion of platforms is permitted. It did not decide whether any particular email crossed the line. The opinion's own structure was to hold that the plaintiffs had not shown, on this record, that they could get the relief they sought. A holding of that kind leaves the underlying question open.

The dissent: Justice Alito, joined by Justices Thomas and Gorsuch

Justice Samuel Alito wrote a dissent, joined by Justices Thomas and Gorsuch. He described a far-reaching campaign by senior federal officials to pressure platforms into suppressing disfavored COVID-19 speech, and he would have found standing, at least for one plaintiff, an activist who said her posts were suppressed after government pressure on a platform. He wrote that the record showed a significant effort by federal officials to pressure a platform to suppress her speech, and that the platform responded. On his reading, a person whose speech was demoted after government pressure had suffered an injury traceable to the government, and the Court was setting the bar for traceability too high.

I will paraphrase rather than quote, because the sharpness of the language is easier to read in the opinion itself, which is available on the Court's website and worth reading in full. The dissent's essential claim is that the majority asked plaintiffs to prove too much about the platforms' private reasoning, when the pattern of pressure and compliance was enough to show causation at the preliminary stage. A government that applies sustained pressure and then sees a policy change should not escape review by pointing to the platform's other motives.

The steelman: why the majority may be right

I owe the majority a fair hearing, so here is the case for it in its strongest form.

Standing doctrine exists to keep the courts in their lane. Judges decide real disputes between real parties, not the abstract legality of government practices. A plaintiff who cannot say, "This specific official's request caused this specific removal of my speech, and a court order would stop it from happening again," is asking the court to supervise the government's communications generally. That is a task for the political branches.

Moreover, the platforms are private companies that were moderating content long before and apart from government requests. In a world of many platforms and many motives, causation is hard to prove, and a doctrine that let plaintiffs skip that proof would turn every disagreement between officials and media companies into a federal lawsuit. Officials are entitled to speak, to criticize, to persuade. A rule that treated every pointed email as coercion would chill legitimate government speech.

I think those points are real. But the rebuttal is that they cut against the idea that the problem is unreviewable, not against the claim that the problem exists.

The rebuttal in four points

1. The standing holding is narrow. It was about these plaintiffs, this record and the request for forward-looking relief. It did not bless the government's conduct, and it did not weaken earlier law against coercion. Six justices decided only that the plaintiffs had not connected the dots.
2. The same Term, the Court reaffirmed the rule against coercion. In NRA v. Vullo, decided in May 2024, a unanimous Court held that a government official may not coerce private parties to punish or suppress disfavored speech on the official's behalf. That case is the better guide to the merits, and I take it up in NRA v. Vullo and the Unanimous Rule Against Government Jawboning. Read together, Vullo says the rule exists and Murthy says the plaintiffs did not prove the rule was broken as to them.
3. The record is public. Whatever the outcome on standing, the discovery material, the district court's findings and the opinions describe what federal officials asked of the platforms and how the platforms responded. That is documentary evidence anyone can read, and it informs the debate over reform, oversight and future litigation.
4. Traceability is a problem the government can create. When officials operate through private meetings, informal calls and requests that are not logged publicly, it becomes harder for a speaker to prove the link. A doctrine that demands a plaintiff trace causation through a process the government controls rewards opacity. That is a reason to want more transparency, and not a reason to relax.

The Founding anchor

The First Amendment reads: "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." The text restrains Congress, and through the Fourteenth Amendment, the states; the Court has long treated it as a limit on government generally, including executive officials. The Founders knew from experience that a government may suppress speech without passing a statute. The Sedition Act of 1798 was a statute, and it was used to prosecute critics of the administration; see The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell. But the same result can be achieved by a nod, a threat and a quiet email. The constitutional point is that the form of the pressure should not matter. What matters is whether the government is in effect directing the silencing of speech.

That is why the line between persuasion and coercion matters so much, and why a ruling on standing leaves the line where it was. The Court's earlier cases, which I discuss in the Vullo post, draw it by asking about the officials' words, their authority, the reaction of the recipient and whether the message could reasonably be read as a threat. Those factors can be applied to the Murthy record. They simply were not, because the case ended earlier.

What a future plaintiff would need to show

Here is the practical lesson, in numbered form, for anyone who wants to bring a better case.

1. A concrete injury to a named speaker. Not a general grievance and not a theory that the public was deprived of speech, but a specific post, account or restriction affecting the plaintiff.
2. A traceable link. Evidence, in emails, messages, meeting records or the timing of events, that a specific government request preceded and caused the specific action against the plaintiff. The more direct the link, the stronger the case. Barrett's opinion is, in effect, a checklist of what was missing.
3. A showing of coercion or significant encouragement. Under the Court's earlier cases, the question is whether the government's conduct was so coercive that the private party's decision was really the government's. Factors include the tone of the communications, the officials' power over the company, any threats of regulatory consequences and the pattern of follow-up.
4. A continuing threat. Because the relief is an injunction, the plaintiff must show a substantial risk that the conduct will continue or recur, not only that it happened.
5. Redressability. A court order against the named officials or agencies must be likely to stop the harm. If the platform would act regardless, the order is empty.

That is a high bar, and it is meant to be. But it is a bar a well-prepared plaintiff can clear, particularly now that the record assembled in this case shows what discovery can uncover.

What conservatives should and should not conclude

Do not conclude that the Court approved of the conduct. It did not. Do not conclude that the case was a waste. It produced a public record, a Supreme Court discussion of the relevant standards and, in Vullo, a companion ruling for the rule. Do not conclude that litigation is the only remedy. Congress can require disclosure of government contacts with platforms, can hold hearings and can pass transparency rules. Agencies can adopt policies against pressuring private companies over lawful speech. Those are political fixes, and a majority that wants them can enact them.

And do not conclude that the answer is for government to stay silent. Officials may argue, publish and criticize. The line is crossing from argument into command. For the larger argument about why government should not referee truth at all, read Misinformation Is Not a Legal Category, and Government Should Stop Pretending, and for a short-lived federal attempt to do so, The Disinformation Governance Board Lasted Four Months, and That Was Too Long. The material from the platforms themselves is covered in The Twitter Files Showed a Process, Not a Plot, and That Is Worse.

The case in brief

1. Murthy v. Missouri (June 26, 2024) was decided on standing, 6-3, with Justice Barrett writing and Justice Alito dissenting with Justices Thomas and Gorsuch.
2. The Court held the plaintiffs had not shown a traceable injury that an injunction could redress. It did not decide whether the federal pressure on platforms was lawful.
3. The record, including the district court's July 4, 2023 injunction and the Fifth Circuit's review, still documents what officials asked and how platforms responded.
4. NRA v. Vullo confirms that government may not coerce private parties to suppress disfavored speech, so the rule stands even where this plaintiff lost.
5. A future plaintiff needs a named injury, a traceable link, evidence of coercion, a continuing threat and a remedy a court can give.

What you can do: read the Murthy syllabus and Justice Barrett's opinion on the Supreme Court's website, then write to your representatives asking for public logging of federal officials' requests to social media companies.