Day 362: Let’s Be Honest: Standing Doctrine Doesn’t Work

Photo by camilo jimenez on Unsplash

We’re still waiting on the two big administrative law cases of the Supreme Court’s term, Relentless/Loper Bright and Jarkesy with two days to go.

But I’ll also be teaching Administrative Law students perhaps my least favorite subject — the law of standing — and the Court today announced its second important standing decision, Murthy v. Missouri.

In this case, Missouri, Louisiana, and several individual plaintiffs sued government officials for pressuring social media companies to suppress or demote certain content that the officials considered false or misleading about COVID-19 or about the 2020 elections.

The two terms italicized above highlight the majority’s reasoning in denying standing to all the plaintiffs. The content moderation policies used by Twitter, Facebook, and YouTube to suppress their content went into effect before the pressure from the government agencies. That means, the Court said, that the plaintiffs could not show that their decisions were “traceable” to the government actors.

And the companies retain the discretion to enforce those policies (or not) even though government pressure has subsided. In the view of the majority (Barrett joined by Roberts, Sotomayor, Kagan, Kavanaugh, and Jackson), that meant that any future harm (the plaintiffs weren’t suing for recovery for past harms) would not obviously be “redressed” by an order that enjoins the government — but leaves X, Meta, and YouTube to do whatever they want. The majority relied heavily on Clapper v. Amnesty International, a decision that denied standing for journalists, attorneys, and human rights activists to sue over prospective surveillance of their clients under the Foreign Intelligence Surveillance Act.

Alito, joined by Thomas and Gorsuch, dissented. In their view, the traceability and redressability were no more attenuated than that in New York v. Department of Commerce about having a citizenship question on the census or Massachusetts v. EPA about EPA’s failure to make an endangerment finding about greenhouse gases.

An Important Case, a Maddening Doctrine

On first read, I’m inclined to agree with the majority, at least as to redressability — X, Meta, YouTube, and other major platforms have soooooooo much discretion to control content on their own, regardless of whether government officials pressure them or not. But you can’t enjoin them under the First Amendment, because they’re not state actors. And therein lies the real problem.

Standing — the requirement that courts only hear “Case[s]” or “Controvers[ies]” — envisioned a world in which private plaintiffs mostly faced off against private plaintiffs. If government officials were parties, they’d be acting in defined ways directly against identifiable individuals.

The world has long since become way more complex than that. Governments not only enforce laws against private parties, they also enact and enforce broad regulatory regimes that at least some members of the public rely on for protection. Defining who is affected by government action and who isn’t has long since ceased to be a simple thing.

And now the media landscape, too, has transformed beyond anything the Framers ever envisioned (and by the way, this is only the tip of the iceberg). It used to be if the government wanted to silence a media voice like The New York Times , they exerted pressure on The New York Times. You and I couldn’t just walk into the Times newsroom and demand that they run our content. (In the early 1990s I worked in the newsroom of The Indianapolis Star; and people did sometimes try to do that. They were politely escorted out or, if necessary, the police were called.)

But now all of us — you, me, the Murthy plaintiffs — consider ourselves media voices, and we feel we deserve unfettered access to the corporate resources of social media companies — maybe because they created them and invited us to use them. Nowadays, if you’re a government official, you need a Masters in Public Administration just to figure out how to engage in censorship.

None of this seismic transformation in our information marketplace is discussed, at least not centrally, in either the majority or the dissenting opinion in Murthy. They just keep on talking as if “injury in fact,” “traceability,” and “redressability” were meaningful doctrines that one could apply consistently. While a certain amount of grey area is inherent in all doctrines the Court must weigh in on, standing is among the most standardless, IMHO, and I’ve been studying it for thirty years (unfortunately).

Murthy raises critical and troubling issues about free speech in the social media landscape. That doesn’t mean the plaintiffs should necessarily have standing, but it does mean we deserve a better doctrine — or at least honesty that the old one doesn’t work today.