Murthy v. Missouri

LII note: The U.S. Supreme Court has now decided Murthy v. Missouri .


Did the U.S. government’s conduct compel social media companies in a manner that caused First Amendment harm to social media users, and should the resulting injunction be modified?

Oral argument: 
March 18, 2024

This case asks the Supreme Court to decide whether certain government officials impermissibly used their government speech to coerce social media companies to violate the First Amendment rights of social media users. The Court will analyze (1) whether the respondents have standing; (2) whether the government’s conduct violated the Respondents’ First Amendment rights; and (3) whether the granted injunction was properly written. Murthy argues that (1) the respondents do not have standing because their injuries are not traceable to the government; (2) the government officials used their permissible government speech that did not contain any threats; and (3) the injunction is unnecessarily broad and vague and would harm the government and the public’s access to information. Missouri counters that (1) the Respondents have standing because their injuries are directly traceable to government officials and can be redressed; (2) the government officials’ unrelenting pressure crossed the line into impermissible speech that violated the Respondents’ First Amendment rights; and (3) the injunction is properly tailored to the harms that the Respondents suffered. The outcome of this case will affect the ability of the government to communicate with private entities, First Amendment rights, and social media content moderation policies.

Questions as Framed for the Court by the Parties 

(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.


Since the 2020 presidential election, some federal officials have communicated with social media platforms about “misinformation” on their websites. Missouri v. Biden, at 2. Officials from government agencies told these platforms to remove content and social media accounts involving topics such as COVID-19, pandemic lockdowns, and Hunter Biden’s laptop. Id. For example, the White House asked platforms to remove content “ASAP” and accounts “immediately” as well as asking on multiple occasions for social media platforms to provide details on their internal policies. Id. at 4, 43. The platforms created an expedited reporting system, removed certain content, and banned specific users from their websites. Id. at 2. The platforms also modified their content policies to capture more posts and continued to remain in contact with these officials. Id.

Five individuals and two states (collectively “Missouri”) who had their content removed by the social media platforms sued the government officials in the United States District Court for the Western District of Louisiana for violating their First Amendment rights. Id. at 1–3. Missouri argued that while the platforms themselves censored their speech, the officials were the ones who coerced and threatened platforms through private communications to violate the Respondents’ First Amendment rights. Id. at 2–3. The district court ruled that the government officials did coerce the social media companies and granted injunctive relief. Id. at 3. The injunction prevented several government agencies from continuing their conduct. Id.

The Petitioners, U.S. Surgeon General Vivek Murthy and several other parties (collectively “Murthy”) appealed to the United States Court of Appeals for the Fifth Circuit, arguing that the officials exercised a form of permissible government speech because they only pointed out content that violated the platforms’ policies to reduce harmful effects of online misinformation. Id. at 1, 3. The Fifth Circuit then reviewed the specific instances of agency contact with the social media companies to decide whether Missouri had standing. Id. at 3–15. The Fifth Circuit decided that both the states and the individual plaintiffs could sue the government officials because there was harm that was traceable to the government officials that could be resolved. Id. at 27.

Next, the Fifth Circuit looked at whether they should grant the plaintiff’s injunction. Id. The Fifth Circuit concluded that the injunction will be upheld against the White House, the Surgeon General, Centers for Disease Control and Prevention, and Federal Bureau of Investigation. Id. at 60. The Fifth Circuit held that their respective actions likely violated the First Amendment by making uncompromising demands on social media platforms, pushing changes in moderation policies, and leaning into their clear authority over the platforms. Id. at 42–43, 54, 57, 60­–61. On rehearing, the Fifth Circuit also added the Cybersecurity and Infrastructure Security Agency (“CISA”) to the list of officials for similar reasons. Missouri v. Biden, at 391–92.

The Fifth Circuit then analyzed whether the District Court’s injunction was unnecessarily broad and vague. Id. at 66. The circuit court vacated every provision of the injunction except for the sixth provision because the provisions prevented more conduct than was necessary from the defendants and were unclear about the line between permissible communication and impermissible coercion. Id. at 66–69. The circuit court then tailored the language of the sixth provision to provide guidance to government officials about what they are allowed to say. Id. at 69. Murthy appealed the decision, and the Supreme Court granted certiorari on October 20th, 2023.



Murthy contends that both individual and state respondents lack standing because the injury-in-fact is not traceable to governments’ actions. Brief for Petitioners, Vivek H. Murthy et al. (“Murthy”) at 17. Murthy argues that the government’s challenged actions did not cause platforms to moderate because content moderation had already occurred long before the government made the currently-challenged remarks in 2020. Id. at 18. Murthy further alleges that even if there was an injury-in-fact traceable to the government’s action in the past, the standing requirement in an injunction case requires respondents to establish an imminent threat in the future based on the repeated injury. Id. at 19. However, Murthy asserts that the government’s remarks only generate a generalized fear of hypothetical harm to individuals, not imminent danger. Id. at 19­–20. Additionally, Murthy explains that the First Amendment is designed to protect private actors against the government’s actions. Id. at 22. Thus, Murthy asserts that state respondents could not suffer First Amendment injuries because state actors lack First Amendment rights in the first place. Id.

Conversely, Missouri identifies an injury-in-fact that is traceable to the government’s action. Brief for Respondents, State of Missouri et al. (“Missouri”) at 21. Missouri first explains that both individuals and states can incur direct censorship injuries through private platforms’ censorship, and that individual respondents hold a “right to listen” under the First Amendment, which guarantees the right to speak and listen on social media. Id. at 19­–21. Missouri claims that individual Respondents incurred these injuries when Petitioners regularly monitored Respondents and silenced speakers whom individual respondents followed on social media. Id. Moreover, Missouri contends that state Respondents also incurred injury when federal censorship disrupted the states’ sovereign interest in hearing the undistorted voices of their citizens. Id. at 25. Lastly, Missouri argues that those harms are traceable to the government’s remarks because the platforms reacted predictably to the government’s actions; and, the moderation of users’ content is a foreseeable effect of the perceived threat by the government. Id. at 21–22. Missouri supports this by citing a significant increase in platform censorship following the government’s intervention. Id. at 21.


Murthy argues that the First Amendment protects an individual’s free speech rights against a state or federal action, but not against a private action. Brief for Petitioners at 25. Thus, Murthy alleges that the government violates the First Amendment via a private decision in only a few limited circumstances where a government’s action coerces or significantly encourages a private action such that the private action can be attributed to the government’s action. Id. at 25–27. Murthy first explains that only compulsion, not persuasion, creates a state action. Id. at 25. Murthy contends that a government compels a private actor only by posing a threat of adverse consequences, or by offering a positive incentive substantial enough to override the platform’s independent judgment. Id. at 30. According to Murthy, the White House’s challenged remarks did not coerce or significantly influence the social media platforms’ decision because the remarks about potential amendments to laws concerning social media platform liability were merely brief, general responses to press questions rather than threats to coerce content moderation. Id. at 32.

Murthy further argues that lower courts found a state action by applying wrong standards that conflicted with precedents and principles established by the Supreme Court. Id. at 35. Murthy asserts that the Fifth Circuit’s four-factor test for coercion – (1) word choice and tone, (2) perception as a threat, (3) existence of regulatory authority, (4) reference of adverse consequences – conflicts with established precedents which require a threat for establishing compulsion. Id. at 37. For instance, Murthy points out that disallowing government speech based on language and tone would potentially prohibit government officials’ advocacy or criticism of private platform speeches, actions protected by First Amendment precedents. Id. at 38. Similarly, Murthy contends that no precedent holds that a private action turns into a state action only because a private party decided to act based on the government’s advice or approval. Id. at 45. Murthy explains that the lower court’s broad standard, which finds threat merely from the government’s approval, would prevent the government from approving or persuading a private party to undertake actions it believes will advance public interests. Id.

On the other hand, Missouri argues that the government coerces private actors if the actions go beyond passive attitudes when encouraging or discouraging private actors’ actions. Brief for Respondents at 32. Missouri contends that the White House coerced platforms into moderating content when the government officials’ remarks conveyed anger and referenced adverse actions that are within the government’s power to initiate or influence. Id. at 39­–40. Missouri also asserts that the existence of a threat depends on how a recipient interprets the message, not the author’s intent. Id. at 38. Therefore, Missouri asserts that a threat exists here because the fact that platforms totally complied with the government’s remarks indicates that the platforms interpreted them as a threat. Id. at 40. Alternatively, Missouri contends that the White House significantly encouraged platform content moderation by consistently expressing its preferences to private platforms and exerting pressure when these repetitive statements proved ineffective. Id. at 33.

Furthermore, Missouri counters petitioners’ contentions by arguing that the lower courts’ standards do not conflict with Supreme Court precedents. Id. at 39–40. Missouri argues that, just like the Fifth Circuit, the Supreme Court has relied on the recipients’ reactions to determine coercion. Id. Furthermore, Missouri criticizes petitioners’ argument that the government’s remarks persuaded private platforms to voluntarily moderate content, contending that this interpretation allows too much room for the government to manipulate the law to expand its power. Id. at 35. Finally, Missouri claims that the White House’s remarks on COVID-19 and Hunter Biden are compulsions because, despite being worded as questions, they were effectively orders as messages from “the most powerful office in the world” and had the intended result of suppressing the platforms. Id. at 41­–42.


Murthy argues that the lower courts’ injunction is overbroad. Brief for Petitioners at 45. Murthy asserts that a federal court must specifically tailor an injunction to remedy an injury to the individual rights of the parties involved, and not to the effects on non-parties. Id. at 46–47. However, Murthy argues that the lower courts granted an overbroad injunction that affects any users on any platform discussing any topic by taking into account the effects of challenged actions on non-parties in determining whether to grant the injunction. Id. at 47. Furthermore, Murthy explains that imminent harm to the plaintiff and the necessity of an injunction to prevent that harm must be established for an injunction to be granted as a remedy. Id. at 46. However, Murthy contends that Respondents and the Fifth Circuit failed to demonstrate that there were imminent First Amendment injuries that warranted an injunction and that that injunction granted was necessary to prevent such harm to Respondents if the government’s actions continued. Id.

Missouri counters that the lower courts’ injunction is not overbroad because it is tailored to redress the harm of potential platform users. Brief for Respondents at 51. Missouri argues that the government’s remarks have widespread consequences, suppressing millions of protected free speech postings by American citizens, necessitating a remedy like the one ordered by the lower courts. Id. at 52. Additionally, Missouri claims that the lower courts’ injunction adequately protected Respondents’ rights because no additional carveouts are necessary and the injunction’s impact is confined to free speech protected by the First Amendment. Id. Moreover, addressing Petitioners’ concerns about the potential chilling effect on the government’s advocacy of their policies, Missouri argues that similar concerns apply to any constitutional violations, citing Bivens v. v. Six Unknown Fed. Narcotics Agents, where the Fourth Amendment was broadly construed to imply a cause of action against the Federal Bureau of Narcotics. Id. at 49–50. In essence, Missouri suggests that establishing a protective rule for defendants whose wrongfulness is reasonably doubted is a more appropriate solution than eliminating accountability altogether. Id. at 50.



The Lawyers’ Committee for Civil Rights Under Law and other organizations interested in protecting voting rights (collectively “LCCRUL”), in support of Murthy, argue that the Fifth Circuit injunction does not have any limiting principle about impermissible communication because, following the Fifth Circuit’s logic, the mere inherent authority of an agency can make speech coercive. Brief of Amici Curiae The Lawyer’s Committee For Civil Rights Under Law et al. (“LCCRUL”), in Support of Petitioners at 30. As a result, LCCRUL asserts that any communication between the government and an online platform would be seen as impermissible communication, making it impossible for the government to say anything to social media companies. Id. New York, 21 other states, and the District of Columbia (collectively “New York”), also in support of Murthy, contend that the states have some authority over private businesses and entities and that a low bar for coercion also prevents the states from discussing and promoting their policy. Brief of Amici Curiae New York et al., in Support of Petitioners at 11.

The National Institute of Family and Life Advocates (“NIFLA”), in support of Missouri, counters that social media users are compelled to censor their own speech because of governmental pressure against social media companies. Brief of Amicus Curiae National Institute of Family and Life Advocates (“NIFLA”), in Support of Respondents at 13. Liberty Counsel, in support of Missouri, explains that the people have a right to express their thoughts without interference from the government. Brief of Amicus Curiae Liberty Counsel, in Support of Respondents at 20–21. According to Liberty Counsel, government officials applied pressure on social media companies to censor speech, creating an environment that limited the expression of thoughts and opinions because users feared the potential consequences. Id. at 23. This environment, Liberty Counsel contends, impedes free expression of thought and undermines the ability to hear open dialogue and diverse perspectives. Id.


LCCRUL, in support of Murthy, asserts that the injunction by the Fifth Circuit prevents critical information-sharing between organizations concerned with election protection. Brief of LCCRUL at 23. According to LCCRUL, the injunction does not contain enough guidance to determine what type of speech is prohibited, leaving organizations helpless when deciding what to communicate to each other. Id. at 21, 23. The lack of information-sharing, LCCRUL argues, results in the proliferation of voting misinformation, which ultimately undermines the ability of citizens to make informed decisions about elections. Id. at 23–24, 30.

The Coalition for Independent Technology Research (“CITR”), in support of Murthy, asserts that upholding the injunction will cause the government and private parties to stop sharing information to prevent exposing those parties to judicial oversight. Brief of Amicus Curiae The Coalition For Independent Technology Research, in Support of Petitioners at 16–17. CITR first explains that communication with the government is essential for researchers to obtain information required for quality research. Id. at 7. This quality research, CITR contends, allows the government and the public to create better policies and regulations. Id. However, CITR asserts that the Fifth Circuit’s ruling would expose the researchers to an increased risk of litigation under the theory that the researchers are acting as an extension of the government. Id. at 17–19. CITR argues that the potential litigation would increase judicial oversight and micro-management of the research, ultimately leading to a hesitancy to share their work with the government. Id. at 19–20.

The Atlantic Legal Foundation (“Atlantic”), in support of Missouri, counters that censoring dissenting viewpoints on social media significantly limits the ability for scientific knowledge to evolve. Brief of Amicus Curiae Atlantic Legal Foundation, in Support of Respondents at 12. Atlantic explains that open debate on research and policy fosters fundamental scientific knowledge through testing and disproving hypotheses. Id. at 10, 12. Liberty Counsel, in support of Missouri, argues that instead of fostering debate, the government suppressed unpopular and controversial information. Brief of Liberty Counsel at 20–21. According to Atlantic, the government’s suppression of dissenting viewpoints chilled public debate and disrupted the foundation of science and freedom of speech. Brief of Atlantic at 12, 17.

The “Twitter Files” Journalists: Matt Taibbi and other independent journalists (collectively “Taibbi”), also in support of Missouri, argue that government officials interfered with journalists’ ability to publish information. Brief of Amicus Curiae The “Twitter Files” Journalists: Matt Taibbi et. al., in Support of Respondents at 26. Taibbi contends that by penalizing journalists for their posts, those journalists are more hesitant to share their work online. Id. at 27. According to Taibbi, these skilled and respected journalists are obstructed from doing their job, directly interfering with the public’s ability to be informed. Id. at 27–28.


Written by:

Eric Yang

Sean Lee

Edited by:

Andrew Kim

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