MURTHY, SURGEON GENERAL, ET AL. v. MISSOURI ET AL.
No. 23-411
SUPREME COURT OF THE UNITED STATES
June 26, 2024
Argued March 18, 2024
OCTOBER TERM, 2023
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
MURTHY, SURGEON GENERAL, ET AL. v. MISSOURI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 23-411. Argued March 18, 2024—Decided June 26, 2024
Under their longstanding content-moderation policies, social-media platforms have taken a range of actions to suppress certain categories of speech, including speech they judge to be false or misleading. In 2020, with the outbreak of COVID-19, the platforms announced that they would enforce these policies against users who post false or misleading content about the pandemic. The platforms also applied misinformation policies during the 2020 election season. During that period, various federal officials regularly spoke with the platforms about COVID-19 and election-related misinformation. For example, White House officials publicly and privately called on the platforms to do more to address vaccine misinformation. Surgeon General Vivek Murthy issued a health advisory that encouraged the platforms to take steps to prevent COVID-19 misinformation “from taking hold.” The Centers for Disease Control and Prevention alerted the platforms to COVID-19 misinformation trends and flagged example posts. The Federal Bureau of Investigation and Cybersecurity and Infrastructure Security Agency communicated with the platforms about election-related misinformation in advance of the 2020 Presidential election and the 2022 midterms.
Respondents are two States and five individual social-media users who sued dozens of Executive Branch officials and agencies, alleging that the Government pressured the platforms to censor their speech in violation of the
Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant. Pp. 8-29.
(a) Article III‘s “case or controversy” requirement is “fundamental” to the “proper role” of the Judiciary. Raines v. Byrd, 521 U. S. 811, 818. A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue,” ibid.—i.e., that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling,” Clapper v. Amnesty Int‘l USA, 568 U. S. 398, 409. Here, the plaintiffs’ theories of standing depend on the platforms’ actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. Instead, they seek to enjoin the Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
The one-step-removed, anticipatory nature of the plaintiffs’ alleged injuries presents two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41-42. Second, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” O‘Shea v. Littleton, 414 U. S. 488, 496. Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. Here, at the preliminary injunction stage, they must show that they are likely to succeed in carrying that burden. On the record in this case, that is a tall order. Pp. 8-10.
(b) The plaintiffs’ primary theory of standing involves their “direct censorship injuries.” Pp. 10-26.
(1) The Court first considers whether the plaintiffs have demonstrated traceability for their past injuries. Because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value. The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. And while the record reflects that the Government defendants played a role in at least some of the
(2) The plaintiffs fail, by and large, to link their past social-media restrictions and the defendants’ communications with the platforms. The state plaintiffs, Louisiana and Missouri, refer only to action taken by Facebook against a Louisiana state representative‘s post about children and the COVID-19 vaccine. But they never say when Facebook took action against the official‘s post—a critical fact in establishing a causal link. Nor have the three plaintiff doctors established a likelihood that their past restrictions are traceable to either the White House officials or the CDC. They highlight restrictions imposed by Twitter and LinkedIn, but point only to Facebook‘s communications with White House officials. Plaintiff Jim Hoft, who runs a news website, experienced election-related restrictions on various platforms. He points to the FBI‘s role in the platforms’ adoption of hacked-material policies and claims that Twitter restricted his content pursuant to those policies. Yet Hoft‘s declaration reveals that Twitter took action according to its own rules against posting private, intimate media without consent. Hoft does not provide evidence that his past injuries are likely traceable to the FBI or CISA. Plaintiff Jill Hines, a healthcare activist, faced COVID-19-related restrictions on Facebook. Though she makes the best showing of all the plaintiffs, most of the lines she draws are tenuous. Plus, Facebook started targeting her content before almost all of its communications with the White House and the CDC, thus weakening the inference that her subsequent restrictions are likely traceable to Government-coerced enforcement of Facebook‘s policies. Even assuming Hines can eke out a showing of traceability, the past is relevant only insofar as it predicts the future. Pp. 14-21.
The plaintiffs’ counterarguments are unpersuasive. First, they argue that they suffer “continuing, present adverse effects” from their past restrictions, as they must now self-censor on social media. O‘Shea, 414 U. S., at 496. But the plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U. S., at 416. Second, the plaintiffs suggest that the platforms continue to suppress their speech according to policies initially adopted under Government pressure. But the plaintiffs have a redressability problem. Without evidence of continued pressure from the defendants, the platforms remain free to enforce, or not to enforce, their policies even those tainted by initial governmental coercion. And the available evidence indicates that the platforms have continued to enforce their policies against COVID-19 misinformation even as the Federal Government has wound down its own pandemic response measures. Enjoining the Government defendants, therefore, is unlikely to affect the platforms’ content-moderation decisions. Pp. 21-27.
(c) The plaintiffs next assert a “right to listen” theory of standing. The individual plaintiffs argue that the
83 F. 4th 350, reversed and remanded.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, KAVANAUGH, and JACKSON, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 23-411
VIVEK H. MURTHY, SURGEON GENERAL, ET AL., PETITIONERS v. MISSOURI, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2024]
JUSTICE BARRETT delivered the opinion of the Court.
During the 2020 election season and the COVID–19 pandemic, social-media platforms frequently removed, demoted, or fact checked posts containing allegedly false or misleading information. At the same time, federal officials, concerned about the spread of “misinformation” on social media, communicated extensively with the platforms about their content-moderation efforts.
The plaintiffs, two States and five social-media users, sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to suppress protected speech in violation of the
The Fifth Circuit was wrong to do so. To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.
A
With their billions of active users, the world‘s major social-media companies host a “staggering” amount of content on their platforms. Twitter, Inc. v. Taamneh, 598 U. S. 471, 480 (2023). Yet for many of these companies, including Facebook, Twitter, and YouTube, not everything goes.1 Under their longstanding content-moderation policies, the platforms have taken a range of actions to suppress certain categories of speech. They place warning labels on some posts, while deleting others. They also “demote” content so that it is less visible to other users. And they may suspend or ban users who frequently post content that violates platform policies.
For years, the platforms have targeted speech they judge to be false or misleading. For instance, in 2016, Facebook began fact checking and demoting posts containing misleading claims about elections. Since 2018, Facebook has removed health-related misinformation, including false claims about a measles outbreak in Samoa and the polio vaccine in Pakistan. Likewise, in 2019, YouTube announced that it would “demonetize” channels that promote anti-vaccine messages.
In 2020, with the outbreak of COVID–19, the platforms announced that they would enforce their policies against users who post false or misleading content about the pandemic. As early as January 2020, Facebook deleted posts it deemed false regarding “cures,” “treatments,” and the effect of “physical distancing.” 60 Record on Appeal 19,035 (Record). And it demoted posts containing what it described as “conspiracy theories about the origin of the virus.” Id., at
The platforms also applied their misinformation policies during the 2020 Presidential election season. Facebook, in late 2019, unveiled measures to counter foreign interference campaigns and voter suppression efforts. One month before the election, multiple platforms suppressed a report about Hunter Biden‘s laptop, believing that the story originated from a Russian hack-and-leak operation. After the election, the platforms took action against users or posts that questioned the integrity of the election results.
Over the past few years, various federal officials regularly spoke with the platforms about COVID–19 and election-related misinformation. Officials at the White House, the Office of the Surgeon General, and the Centers for Disease Control and Prevention (CDC) focused on COVID-19 content, while the Federal Bureau of Investigation (FBI) and the Cybersecurity and Infrastructure Security Agency (CISA) concentrated on elections.
White House. In early 2021, and continuing primarily through that year, the Director of Digital Strategy and members of the COVID-19 response team interacted with the platforms about their efforts to suppress vaccine misinformation. They expressed concern that Facebook in particular was “one of the top drivers of vaccine hesitancy,” due to the spread of allegedly false or misleading claims on the platform. App. 659–660. Thus, the officials peppered Facebook (and to a lesser extent, Twitter and YouTube) with detailed questions about their policies, pushed them to suppress certain content, and sometimes recommended policy changes. Some of these communications were more aggressive than others. For example, the director of Digital Strategy, frustrated that Facebook had not removed a particular
Surgeon General. In July 2021, Surgeon General Vivek Murthy issued a health advisory on misinformation. The advisory encouraged platforms to “[r]edesign recommendation algorithms to avoid amplifying misinformation,” “[i]mpose clear consequences for accounts that repeatedly violate platform policies,” and “[p]rovide information from trusted and credible sources to prevent misconceptions from taking hold.” 3 Record 662. At a press conference to announce the advisory, Surgeon General Murthy argued that the platforms should “operate with greater transparency and accountability.” Id., at 626. The following year, the Surgeon General issued a “Request for Information,” seeking, among other things, reports on each platform‘s “COVID–19 misinformation policies.” Impact of Health Misinformation in the Digital Information Environment in the United States Throughout the COVID–19 Pandemic Request for Information (RFI), 87 Fed. Reg. 12714 (Mar. 7, 2022).
CDC. Like the White House, the CDC frequently communicated with the platforms about COVID–19 misinformation. In early 2020, Facebook reached out to the agency, seeking authoritative information about the virus that it could post on the platform. The following year, the CDC‘s communications expanded to other platforms, including Twitter and YouTube. The CDC hosted meetings and sent reports to the platforms, alerting them to misinformation
FBI and CISA. These agencies communicated with the platforms about election-related misinformation. They hosted meetings with several platforms in advance of the 2020 Presidential election and the 2022 midterms. The FBI alerted the platforms to posts containing false information about voting, as well as pernicious foreign influence campaigns that might spread on their sites. Shortly before the 2020 election, the FBI warned the platforms about the potential for a Russian hack-and-leak operation. Some companies then updated their moderation policies to prohibit users from posting hacked materials. Until mid-2022, CISA, through its “switchboarding” operations, forwarded third-party reports of election-related misinformation to the platforms. These communications typically stated that the agency “w[ould] not take any action, favorable or unfavorable, toward social media companies based on decisions about how or whether to use this information.” 72 Record 23,223.
B
Respondents are two States and five individual social-media users. They were the plaintiffs below, and for the sake of narrative clarity, we will refer to them as “plaintiffs” in this opinion. (Likewise, we will refer to the Government individuals and agencies as “defendants” rather than petitioners.) The individual plaintiffs—three doctors, the owner of a news website, and a healthcare activist—allege that various platforms removed or demoted their COVID–19 or election-related content between 2020 and 2023. The States, Missouri and Louisiana, claim that the platforms have suppressed the speech of state entities and officials, as well as their citizens’ speech.
Though the platforms restricted the plaintiffs’ content, the plaintiffs maintain that the Federal Government was
After granting extensive discovery, the District Court issued a preliminary injunction. Missouri v. Biden, 680 F. Supp. 3d 630, 729 (WD La. 2023). The court held that officials at the White House, the Surgeon General‘s Office, the CDC, the FBI, and CISA likely “coerced” or “significantly encouraged” the platforms “to such extent that the[ir content-moderation] decision[s] should be deemed to be the decisions of the Government.” Id., at 694 (internal quotation marks omitted). It enjoined those agencies, along with scores of named and unnamed officials and employees, from taking actions “for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-medial platforms.” Missouri v. Biden, 2023 WL 5841935, *1–*2 (WD La., July 4, 2023).2
Following a grant of panel rehearing, the Fifth Circuit affirmed in part and reversed in part. Missouri v. Biden, 83
On the merits, the Fifth Circuit explained that “a private party‘s conduct may be state action if the government coerced or significantly encouraged it.” Id., at 380 (citing Blum v. Yaretsky, 457 U. S. 991, 1004 (1982); emphasis deleted). To identify coercion, it asked whether “the government compelled the [private party‘s] decision by ... intimating that some form of punishment will follow a failure to comply.” 83 F. 4th, at 380. The court explained that the Government significantly encourages a private party‘s choice when it exercises “active, meaningful control, whether by entanglement in the party‘s decision-making process or direct involvement in carrying out the decision itself.” Id., at 377.3
Applying those tests, the Fifth Circuit determined that White House officials, in conjunction with the Surgeon General‘s Office, likely both coerced and significantly encouraged the platforms to moderate content. Id., at 388. The court concluded that the same was true for the FBI. Ibid. It held that the CDC and CISA significantly encouraged (but did not coerce) the platforms’ moderation decisions.
The Fifth Circuit agreed with the District Court that the equities favored the plaintiffs. Id., at 392-394. It then modified the District Court‘s injunction to state that the defendants, and their employees and agents, shall not “coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.” Id., at 397. The court did not limit the injunction to the platforms that the plaintiffs use or the topics that the plaintiffs wish to discuss, explaining that the harms stemming from the defendants’ conduct “impac[t] every social-media user.” Id., at 398.
The federal agencies and officials applied to this Court for emergency relief. We stayed the injunction, treated the application as a petition for a writ of certiorari, and granted the petition. 601 U. S. ___ (2023).
II
We begin—and end—with standing. At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute.
A
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” The “case or controversy” requirement is “‘fundamental to the judiciary‘s proper role in our system of government.‘” Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)). Federal courts can only review statutes and executive actions when necessary “to redress or prevent actual or imminently threatened injury to persons caused by ... official violation of law.” Summers v. Earth Island Institute, 555
A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue.” Raines, 521 U. S., at 818; Department of Commerce v. New York, 588 U. S. 752, 766 (2019). She must show that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int‘l USA, 568 U. S. 398, 409 (2013) (internal quotation marks omitted). These requirements help ensure that the plaintiff has “such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction.” Summers, 555 U. S., at 493 (internal quotation marks omitted).
The plaintiffs claim standing based on the “direct censorship” of their own speech as well as their “right to listen” to others who faced social-media censorship. Brief for Respondents 19, 22. Notably, both theories depend on the platform‘s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon, 426 U. S., at 41–42. In keeping with this principle, we have “been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.” Clapper, 568 U. S., at 413. Rather
Before we evaluate the plaintiffs’ different theories, a few preliminaries: The plaintiff “bears the burden of establishing standing as of the time [s]he brought th[e] lawsuit and maintaining it thereafter.” Carney v. Adams, 592 U. S. 53, 59 (2020). She must support each element of standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992). At the preliminary injunction stage, then, the plaintiff must make a “clear showing” that she is “likely” to establish each element of standing. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (emphasis deleted). Where, as here, the parties have taken discovery, the plaintiff cannot rest on “mere allegations,” but must instead point to factual evidence. See Lujan, 504 U. S., at 561 (internal quotation marks omitted).
B
1
The plaintiffs’ primary theory of standing involves their
Here, a note of caution: If the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game. But because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value. See O‘Shea, 414 U. S., at 495-496 (“Past exposure to illegal conduct” can serve as evidence of threatened future injury but “does not in itself show a present case or controversy regarding injunctive relief“). If a plaintiff demonstrates that a particular Government defendant was behind her past social-media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant. Conversely, if a plaintiff cannot trace her past injury to one of the defendants, it will be much harder for her to make that showing. See Clapper, 568 U. S., at 411. In the latter situation, the plaintiff would essentially have to build her case from scratch, showing why she has some newfound reason to fear that one of the named defendants will coerce her chosen platform to restrict future speech on a topic about which she plans to post—in this case, either COVID–19 or the upcoming election. Keep in mind, therefore, that the past is relevant only insofar as it is a launching pad for a showing of imminent future injury.
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on
We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID-19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.
This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.4
Heeding these conditions is critically important in a sprawling suit like this one. The plaintiffs faced speech restrictions on different platforms, about different topics, at
2
The plaintiffs rely on allegations of past Government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms.
Louisiana and Missouri. The state plaintiffs devote minimal attention to restriction of their own social-media content, much less to a causal link between any such restriction and the actions of any Government defendant. They refer only to Facebook‘s “flagg[ing] ... and deboost[ing]” of a Louisiana state representative‘s post about children and the COVID–19 vaccine. Brief for Respondents 20; App. 635-636. We need not decide whether an injury to
Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriarty. These plaintiffs are doctors who questioned the wisdom of then-prevailing COVID–19 policies, including lockdowns and mask and vaccine mandates. Each faced his first social-media restriction in 2020, before the White House and the CDC entered discussions with the relevant platforms. Plaintiffs highlight restrictions imposed by Twitter and LinkedIn, starting in 2021, on Dr. Kulldorff‘s posts about natural immunity. They also point out that Twitter restricted the visibility of Dr. Kheriarty‘s posts about vaccine safety and efficacy, as well as the ethics surrounding vaccine mandates. Attempting to show causation, the plaintiffs emphasize that in January 2022, Facebook reported to White House officials that it had recently demoted one post advocating for natural immunity over vaccine immunity. But neither the timing nor the platforms line up (nor, in Dr. Kheriarty‘s case, does the content), so the plaintiffs cannot show that these restrictions were traceable to the White House officials. In fact, there is no record evidence that White House officials ever communicated at all
with LinkedIn.Drs. Bhattacharya and Kulldorff claim that, after disagreeing with the CDC and other federal health officials, they faced a “relentless covert campaign of social-media censorship.” App. 585 (emphasis deleted). They refer to the platforms’ suppression of the Great Barrington Declaration, their coauthored report calling for an end to lockdowns. But their declarations do not suggest that anyone at the CDC was involved; rather, they point to officials at the National Institutes of Health and the NIAID. Those entities are not before us. With nothing else to show, Drs. Bhattacharya, Kulldorff, and Kheriarty have not established a likelihood that their past restrictions are traceable to either the White House officials or the CDC.
Jim Hoft. Both Hoft and his news website, “The Gateway Pundit,” experienced election and COVID–19-related restrictions on various platforms. Hoft tries to demonstrate his standing to sue only the FBI and CISA, which means that only the suppression of his election-related posts is relevant. (As already discussed, the record contains no evidence that either the FBI or CISA engaged with the platforms about the pandemic.) First, Hoft points to the FBI‘s role in the platforms’ adoption of hacked-material policies. And he claims that Twitter, in December 2020, censored content about the Hunter Biden laptop story under such a policy. The post was titled: “Where‘s Hunter? How is Hunter Celebrating the New Year? New Photos of Hunter Biden Pushing Drugs on Women Emerge.” Hoft‘s own declaration reveals that Twitter acted according to its “rules against posting or sharing privately produced/distributed intimate media of someone without their express consent.” Id., at 608. Hoft provides no evidence that Twitter adopted a policy against posting private, intimate content in response to the FBI‘s warnings about hack-and-leak operations. Plus, it was Hoft‘s brother, Joe Hoft, who posted this tweet; Twitter therefore suspended Joe Hoft‘s account. It is
Hoft claims that his content appears on a CISA document tracking posts that various entities had flagged for the platforms as misinformation. The spreadsheet shows that a private entity, the Election Integrity Partnership—not CISA—alerted Twitter to an unidentified article from the Gateway Pundit. And the spreadsheet does not reveal whether Twitter removed or otherwise suppressed that post. This evidence does not support the conclusion that Hoft‘s past injuries are likely traceable to the FBI or CISA.
Jill Hines. Of all the plaintiffs, Hines makes the best showing of a connection between her social-media restrictions and communications between the relevant platform (Facebook) and specific defendants (CDC and the White House). That said, most of the lines she draws are tenuous, particularly given her burden of proof at the preliminary injunction stage—recall that she must show that her restrictions are likely traceable to the White House and the CDC.
A healthcare activist, Hines codirects “Health Freedom Louisiana,” a group that advocated against COVID–19 mask and vaccine mandates. In October 2020—before the start of communications with the White House and the bulk of communications with the CDC—Facebook began to reduce the reach of Hines’ and Health Freedom‘s pages. Hines tries to connect Facebook‘s subsequent actions against her to both the White House officials and the CDC.
First, Facebook “deplatformed” (i.e., deleted) one of Health Freedom‘s groups in July 2021. The last post in the group asked members to contact state legislators about health freedom legislation. Three months earlier, a White House official sent Facebook several “suggestions” that were “circulating around the building and informing thinking,” including that the platform should “end group recom-
Next, in April 2023, Facebook gave Hines a warning after she reposted content from Robert F. Kennedy, Jr. Two years earlier, White House officials had pushed Facebook to remove the accounts of the “disinformation dozen,” 12 people (including Kennedy) supposedly responsible for a majority of COVID–19-related misinformation. Hines tries to link the warning she received to this earlier White House pressure. Again, though, the link is weak. There is no evidence that the White House asked Facebook to censor every user who reposts a member of the disinformation dozen, nor did Facebook change its policies to do so. Facebook‘s 2023 warning to Hines bears only a tangential relationship to the White House‘s 2021 directive to Facebook.
Hines traces her remaining restrictions to the CDC. Beginning in October 2020, Facebook fact checked Hines’ posts about pregnant women taking the COVID–19 vaccine,
In May 2022, Facebook restricted Hines’ account for posting an article discussing increased rates of myocarditis in teenagers following vaccination. A little over a year earlier, the CDC warned Facebook against claims of “unsubstantiated links to new [vaccine] side effects,” including “irritab[ility],” “auto-immune issues, infertility,” and “neurological damage including lowered IQ.” 54 Record 17,042–17,043 (emphasis deleted). There is no evidence that the CDC ever listed myocarditis as an unsubstantiated side effect—but because it is an alleged side effect, it at least falls under the same umbrella as the CDC‘s communication. Health Freedom‘s February 2023 violation, by contrast, was for posting that vaccine manufacturers would not compensate those with vaccine-related injuries—a topic that bears little resemblance to the content that the CDC flagged.
In April 2023, Hines received violations for posts about children and the vaccine. In November 2021, Facebook worked with the CDC to update its policies to remove additional false claims including that “the COVID vaccine is not safe for kids.” 37 id., at 11,457. It is not clear that either of Hines’ posts violated the CDC-influenced policy against false claims related to children and the vaccine. One simply referred to the World Health Organization‘s COVID–19 vaccine recommendations for children, and the other discussed the role of children within the “predatory” pharmaceutical industry. App. 789–790. Given the loose match between the policy and the posts, it is hard to call it “likely” that Facebook was enforcing the CDC‘s preferences
With one or two potentially viable links, Hines makes the best showing of all the plaintiffs. Still, Facebook was targeting her pages before almost all of its communications with the White House and the CDC, which weakens the inference that her subsequent restrictions are likely traceable to “government-coerced enforcement” of Facebook‘s policies, 83 F. 4th, at 370 (emphasis deleted), rather than to Facebook‘s independent judgment.8 Even assuming, however,
3
To obtain forward-looking relief, the plaintiffs must establish a substantial risk of future injury that is traceable to the Government defendants and likely to be redressed by an injunction against them. To carry that burden, the plaintiffs must proffer evidence that the defendants’ “allegedly wrongful behavior w[ould] likely occur or continue.”
The plaintiffs treat the defendants as a monolith, claiming broadly that “the governmen[t]” continues to communicate with the platforms about “‘content-moderation issues.‘” Brief for Respondents 29 (quoting 83 F. 4th, at 369). But we must confirm that each Government defendant continues to engage in the challenged conduct, which is “coercion” and “significant encouragement,” not mere “communication.” Plus, the plaintiffs have only explicitly identified an interest in speaking about COVID–19 or elections—so the defendants’ discussions about content-moderation issues must focus on those topics.
We begin with the plaintiffs who have not pointed to any past restrictions likely traceable to the Government defendants. This failure to establish traceability for past harms—which can serve as evidence of expected future harm—“substantially undermines [the plaintiffs‘] standing theory.” Clapper, 568 U.S., at 411. These plaintiffs (i.e., everyone other than Hines) are thus particularly ill suited to the task of establishing their standing to seek forward-looking relief.
Take Hoft, the only plaintiff who has expressed interest in speaking about elections (and thus the only plaintiff with potential standing to sue the FBI and CISA). The FBI‘s challenged conduct was ongoing at the time of the complaint, as the agency worked with the platforms during the 2022 midterm election season. Still, Hoft must rely on a “speculative chain of possibilities” to establish a likelihood of future harm traceable to the FBI. Id., at 414. Hoft‘s fu-
The doctors and the state plaintiffs, who focus on COVID–19 content, have a similarly uphill battle vis-à-vis the White House, the Surgeon General‘s Office, and the CDC. Hines, with her superior showing on past harm, is in a slightly better position to demonstrate likely future harm at the hands of these defendants. Still, she has not shown enough.
Starting with the White House and Surgeon General‘s Office, the vast majority of their public and private engagement with the platforms occurred in 2021, when the pandemic was still in full swing. By August 2022, when Hines joined the case, the officials’ communications about COVID–19 misinformation had slowed to a trickle. Publicly, the White House Press Secretary made two statements in February and April 2022. First, she said that the platforms should continue “call[ing] out misinformation and disinformation.” 3 Record 758. Two months later, she spoke generally about §230 and antitrust reform, but did not mention content moderation or COVID–19 misinformation. In March 2022, the Surgeon General issued a voluntary “Request for Information” from the platforms about
Privately, Facebook sent monthly “Covid Insights” reports to officials in the White House and the Surgeon General‘s Office, at least until July 2022. These reports contained information about the top 100 vaccine-related posts in the United States, including whether Facebook took action against any of them. In June, Facebook asked if it should continue sending these reports, as it had stopped seeing “problematic vaccine related” content in the top posts. 50 id., at 15,645–15,646. The official replied that, though he would “normally say we are good to discontinue,” the reports would be helpful “as we start to ramp up ... vaccines” for children under five. Id., at 15,645. The record contains no other evidence of private contact with respect to COVID–19 misinformation.
On this record, it appears that the frequent, intense communications that took place in 2021 had considerably subsided by 2022. (Perhaps unsurprisingly, given the changed state of the pandemic.) It is thus very difficult for Hines to show that she faces future harm that is traceable to officials in the White House and the Surgeon General‘s Office. Recall the Fifth Circuit‘s reasoning regarding traceability for past harms: In the face of a governmental “pressure campaign,” the “platforms’ censorship decisions were likely attributable at least in part to [their] reluctance to risk the adverse legal or regulatory consequences that could result from a refusal to adhere to the government‘s directives.” 83 F. 4th, at 370. But in the months leading up to this suit, these officials issued no directives and threatened no consequences. They only asked for information about the most popular vaccine-related posts. Hines does not allege that her content has fallen, or is likely to fall, in that category.
In these circumstances, Hines cannot rely on “the predictable effect of Government action on the decisions of third parties“; rather, she can only “speculat[e] about the decisions of third parties.” Department of Commerce, 588 U.S., at 768. It is “no more than conjecture” to assume that Hines will be subject to White House-induced content moderation. Los Angeles v. Lyons, 461 U.S. 95, 108 (1983). Hines (along with the other plaintiffs) has therefore failed to establish a likelihood of future injury traceable to the White House or the Surgeon General‘s Office. Likewise, the risk of future harm traceable to the CDC is minimal. The CDC stopped meeting with the platforms in March 2022. Thereafter, the platforms sporadically asked the CDC to verify or debunk several claims about vaccines. But the agency has not received any such message since the summer of 2022.10
The plaintiffs’ counterarguments do not persuade. First, they argue that they suffer “continuing, present adverse effects” from their past restrictions, as they must now self-censor on social media. O‘Shea, 414 U.S., at 496. But the plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U.S., at 416. And as we explained, the plaintiffs have not shown that they are likely to face a risk of future censorship traceable to the defendants. Indeed, even before the defendants entered the scene, the plaintiffs “had a similar incentive to engage in” self-censorship, given the platforms’ independent content moderation. Id., at 417. So it is “difficult
Second, the plaintiffs and the dissent suggest that the platforms continue to suppress their speech according to policies initially adopted under Government pressure. Post, at 21. That may be true. But the plaintiffs have a redressability problem. “To determine whether an injury is redressable,” we “consider the relationship between ‘the judicial relief requested’ and the ‘injury’ suffered.” California v. Texas, 593 U.S. 659, 671 (2021). The plaintiffs assert several injuries—their past social-media restrictions, current self-censorship, and likely social-media restrictions in the future. The requested judicial relief, meanwhile, is an injunction stopping certain Government agencies and employees from coercing or encouraging the platforms to suppress speech. A court could prevent these Government defendants from interfering with the platforms’ independent application of their policies. But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion. The platforms are “not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.” Lujan, 504 U.S., at 569 (plurality opinion); see also Haaland v. Brackeen, 599 U.S. 255, 293–294 (2023).
Indeed, the available evidence indicates that the platforms have enforced their policies against COVID–19 misinformation even as the Federal Government has wound down its own pandemic response measures. For instance, Hines reports that Facebook imposed several restrictions on her vaccine-related posts in the spring of 2023. Around the same time, in April 2023, President Biden signed a joint resolution that ended the national COVID–19 emergency. See
C
We conclude briefly with the plaintiffs’ “right to listen” theory. The individual plaintiffs claim an interest in reading and engaging with the content of other speakers on social media. The
This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else‘s censorship—at least so long as they claim an interest in that person‘s speech. This Court has “never accepted such a boundless theory of standing.” Already, LLC v. Nike, Inc., 568 U.S. 85, 99 (2013). While we have recognized a ”
Attempting to satisfy this requirement, the plaintiffs emphasize that hearing unfettered speech on social media is critical to their work as scientists, pundits, and activists. But they do not point to any specific instance of content moderation that caused them identifiable harm. They have therefore failed to establish an injury that is sufficiently “concrete and particularized.” Lujan, 504 U.S., at 560.
The state plaintiffs, claiming their own version of the “right to listen” theory, assert a sovereign interest in hearing from their citizens on social media. See 83 F. 4th, at 372–373. But this theory suffers from the same flaws as the individual plaintiffs’ theory. The States have not identified any specific speakers or topics that they have been unable to hear or follow.
The States cite this supposed sovereign injury as a basis for asserting third-party standing on behalf of “the citizens they would listen to.” Brief for Respondents 30. But “[t]his argument is a thinly veiled attempt to circumvent the limits on parens patriae standing.” Brackeen, 599 U.S., at 295, n. 11. Namely, States do not have “‘standing as parens patriae to bring an action against the Federal Government.‘” Id., at 295.
The States, like the individual plaintiffs, have failed to establish a likelihood of standing.
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The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court‘s standing doctrine prevents us from “exercis[ing such] general legal oversight” of the other branches of Government. TransUnion, 594 U.S., at 423–424. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 23–411
VIVEK H. MURTHY, SURGEON GENERAL, ET AL., PETITIONERS v. MISSOURI, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2024]
JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting.
This case involves what the District Court termed “a far-reaching and widespread censorship campaign” conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID–19 on social media. Missouri v. Biden, 680 F. Supp. 3d 630, 729 (WD La. 2023). Victims of the campaign perceived by the lower courts brought this action to ensure that the Government did not continue to coerce social media platforms to suppress speech. Among these victims were two States, whose public health officials were hampered in their ability to share their expertise with state residents; distinguished professors of medicine at Stanford and Harvard; a professor of psychiatry at the University of California, Irvine School of Medicine; the owner and operator of a news website; and Jill Hines, the director of a consumer and human rights advocacy organization. All these victims simply wanted to speak out on a question of the utmost public importance.
To protect their right to do so, the District Court issued a preliminary injunction, App. 278–285, and the Court of Appeals found ample evidence to support injunctive relief. See Missouri v. Biden, 83 F. 4th 350 (CA5 2023).
If the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases
The speech at issue falls squarely into those categories. It concerns the COVID–19 virus, which has killed more than a million Americans.1 Our country‘s response to the COVID–19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our dedication to a free marketplace of ideas demands that dissenting views on such matters be allowed. I assume that a fair portion of what social media users had to say about COVID–19 and the pandemic was of little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed.2 That is what inevitably happens when entry to
the marketplace of ideas is restricted.
Of course, purely private entities like newspapers are not subject to the
The record before us is vast. It contains evidence of communications between many different government actors and a variety of internet platforms, as well as evidence regarding the effects of those interactions on the seven different plaintiffs. For present purposes, however, I will focus on (a) just a few federal officials (namely, those who worked either in the White House or the Surgeon General‘s office), (b) only one of the most influential social media platforms, Facebook, and (c) just one plaintiff, Jill Hines, because if any of the plaintiffs has standing, we are obligated to reach the merits of this case. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52, n. 2 (2006).
With the inquiry focused in this way, here is what the
That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court‘s failure to say so. Officials who read today‘s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.
In the next section of this opinion, I will recount in some detail what was done by the officials in this case, but in considering the coercive impact of their conduct, two prominent facts must be kept in mind.
First, social media have become a leading source of news
Second, internet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by
For these and other reasons,5 internet platforms have a powerful incentive to please important federal officials, and the record in this case shows that high-ranking officials
Not surprisingly these efforts bore fruit. Facebook adopted new rules that better conformed to the officials’ wishes, and many users who expressed disapproved views about the pandemic or COVID–19 vaccines were “deplatformed” or otherwise injured.
I
A
I begin by recounting the White House-led campaign to coerce Facebook. The story starts in early 2021, when White House officials began communicating with Facebook about the spread of misinformation about COVID–19 on its platform. Their emails started as questions, e.g., “Can you also give us a sense of misinformation that might be falling outside of your removal polices?” 10 Record 3397. But when the White House did not get the results it wanted, its questions quickly turned to virtual demands. And sometimes, those statements were paired with explicit references to potential consequences.
We may begin this account with an exchange that occurred in March 2021, when the Washington Post reported that Facebook was conducting a study that examined whether posts on the platform questioning COVID–19‘s severity or the vaccines’ efficacy dissuaded some Americans from being vaccinated.6 The study noted that Facebook‘s rules permitted some of this content to circulate. Rob Flaherty, the White House Director of Digital Strategy, promptly emailed Facebook about the report. The subject
Andy Slavitt, the White House Senior Advisor for the COVID-19 Response, chimed in with similar complaints. “[R]elative to othe[r]” platforms, he said, “interactions with Facebook are not straightforward” even though the misinformation problems there, in his view, were “worse.” Id., at 9364. According to Slavitt, the White House did not believe that Facebook was “trying to solve the problem,” so he informed Facebook that “[i]nternally we have been considering our options on what to do about it.” Ibid.
Facebook responded apologetically to this and other missives. It acknowledged that “[w]e obviously have work to do to gain your trust.” Id., at 9365. And after a follow-up conversation, the platform promised Flaherty and Slavitt that it would adopt additional policies to “reduc[e] virality of vaccine hesitancy content.” Id., at 9369. In particular, Facebook promised to “remove [any] Groups, Pages, and Accounts” that “disproportionately promot[e] . . . sensationalized content” about the risks of vaccines, even though it acknowledged that user stories about their experiences and those of family members or friends were “ofte[n] true.” Ibid. Facebook also promised to share additional data with the White House, ibid., but Flaherty was not fully satisfied. He said that the additional data Facebook offered was not “going to get us the info we‘re looking for,” but “it shows to me that you at least understand the ask.” Id., at 9368.
In April, Flaherty again demanded information on the
The next week, Facebook officers spoke with Slavitt and Flaherty about reports of a rare blood clot caused by the Johnson & Johnson vaccine. Id., at 9385. The conversation quickly shifted when the White House noticed that one of the most-viewed vaccine-related posts from the past week was a Tucker Carlson video questioning the efficacy of the Johnson & Johnson vaccine. Id., at 9376, 9388. Facebook informed the White House that the video did not “qualify for removal under our policies” and thus would be demoted instead, ibid., but that answer did not please Flaherty. “How was this not violative?” he queried, and “[w]hat exactly is the rule for removal vs demoting?” Id., at 9387. Then, for the second time in a week, he invoked the January 6 attack: “Not for nothing, but last time we did this dance, it ended in an insurrection.” Id., at 9388. When Facebook did not respond promptly, he made his demand more explicit: “These questions weren‘t rhetorical.” Id., at 9387.
If repeated accusations that Facebook aided an insurrection did not sufficiently convey the White House‘s displeasure, Flaherty and Slavitt made sure to do so by phone.7
In
After a second call, a high-ranking Facebook executive perceived that Slavitt was “outraged—not too strong a word to describe his reaction“—that the platform had not removed a fast-spreading meme suggesting that the vaccines might cause harm. Id., at 295. The executive had “countered that removing content like that would represent a significant incursion into traditional boundaries of free expression in the US,” but Slavitt was unmoved, in part because he presumed that other platforms “would never accept something like this.” Ibid.
A few weeks later, White House Press Secretary Jen Psaki was asked at a press conference about Facebook‘s decision to keep former President Donald Trump off the platform. See Press Briefing by Press Secretary Jen Psaki and Secretary of Agriculture Tom Vilsack (May 5, 2021) (hereinafter May 5 Press Briefing).8 Psaki deflected that question but took the opportunity to call on platforms like Facebook to “stop amplifying untrustworthy content . . . especially related to COVID-19, vaccinations, and elections.” 78 Record 25170. In the same breath, Psaki reminded the platforms that President Biden “supports . . . a robust anti-trust program.” Id., at 25171 (emphasis deleted); May 5 Press Briefing.
Around this same time, Flaherty and Slavitt were interrogating Facebook on the mechanics of its content-moderation rules for COVID-19 misinformation. 30 Record
The White House responded with more questions. Acknowledging that he sounded “like a broken record,” Flaherty interrogated Facebook about “how much content is being demoted, and how effective [Facebook was] at mitigating reach, and how quickly.” Id., at 9395. Later, Flaherty chastised Facebook for failing to prevent some vaccine-hesitant content from showing up through the platform‘s search function. Id., at 9400. “‘[R]emoving bad information from search’ is one of the easy, low-bar things you guys do to make people like me think you‘re taking action,” he said. Id., at 9399. “If you‘re not getting that right, it raises even more questions about the higher bar stuff.” Ibid. A few weeks after this latest round of haranguing, Facebook expanded penalties for individual Facebook accounts that repeatedly shared content that fact-checkers deemed misinformation; henceforth, all of those individuals’ posts would show up less frequently in their friends’ news feeds. See 9 id., at 2697; Facebook, Taking Action Against People Who Repeatedly Share Misinformation
Perhaps the most intense period of White House pressure began a short time later. On July 15, Surgeon General Vivek Murthy released an advisory titled “Confronting Health Misinformation.” 78 Record 25171, 25173. Dr. Murthy suggested, among other things, algorithmic changes to demote misinformation and additional consequences for misinformation “‘super-spreaders.‘” U. S. Public Health Service, Confronting Health Misinformation: The U. S. Surgeon General‘s Advisory on Building a Healthy Information Environment 12 (2021).10 Dr. Murthy also joined Psaki at a press conference, where he asked the platforms to take “much, much more . . . aggressive action” to combat COVID-19 misinformation “because it‘s costing people their lives.” Press Briefing by Press Secretary Jen Psaki and Surgeon General Dr. Vivek H. Murthy (July 15, 2021).11
At the same press conference, Psaki singled out Facebook as a primary driver of misinformation and asked the platform to make several changes. Facebook “should provide, publicly and transparently, data on the reach of COVID-19 [and] COVID vaccine misinformation.” Ibid. It “needs to move more quickly to remove harmful, violative posts.” Ibid. And it should change its algorithm to promote “quality information sources.” Ibid. These recommendations echoed Slavitt‘s and Flaherty‘s private demands from the preceding months—as Psaki herself acknowledged. The White House “engage[s] with [Facebook] regularly,” she said, and Facebook “certainly understand[s] what our asks
Facebook responded by telling the press that it had partnered with the White House to counter misinformation and that it had “removed accounts that repeatedly break the rules” and “more than 18 million pieces of COVID misinformation.” 78 Record 25174. But at another press briefing the next day, Psaki said these efforts were “[c]learly not” sufficient and expressed confidence that Facebook would “make decisions about additional steps they can take.” See id., at 25175; Press Briefing by Press Secretary Jen Psaki (July 16, 2021).12
That same day, President Biden told reporters that social media platforms were “‘killing people” by allowing COVID-related misinformation to circulate. 78 Record 25174, 25212. At oral argument, the Government suggested that the President later disclaimed any desire to hold the platforms accountable for misinformation, Tr. of Oral Arg. 34-35, but that is not so. The President‘s so-called clarification, like many other statements by Government officials, called on “Facebook” to “do something about the misinformation” on its platform. B. Klein, M. Vazquez, & K. Collins, Biden Backs Away From His Claim That Facebook Is ‘Killing People’ by Allowing COVID Misinformation, CNN (July 19, 2021).13
And far from disclaiming potential regulatory action, the White House confirmed that it had not “taken any options off the table.” Ibid. In fact, the day after the President‘s supposed clarification, the White House Communications Director commended the President for “speak[ing] very aggressively” and affirmed that platforms “certainly
Facebook responded quickly. The same day the President made his “killing people” remark, the platform reached out to Dr. Murthy to determine “the scope of what the White House expects from us on misinformation going forward.” 9 id., at 2690. The next day, Facebook asked officials about how to “get back to a good place” with the White House. 30 id., at 9403. And soon after, Facebook sent an email saying that it “hear[d]” the officials’ “call for us to do more,” and promptly assured the White House that it would comply. 9 id., at 2706. In spite of the White House‘s inflammatory rhetoric, Facebook at all times went out of its way to strike a conciliatory tone. Only two days after the President‘s remark—and before his supposed clarification—Facebook assured Dr. Murthy that, though “it‘s not great to be accused of killing people,” Facebook would “find a way to deescalate and work together collaboratively.” Id., at 2713.
Concrete changes followed in short order. In early August, the Surgeon General‘s Office reached out to Facebook for “an update of any new/additional steps you are taking with respect to health misinformation in light of” the July 15 advisory. Id., at 2703. In response, Facebook informed the Surgeon General that it would soon “expan[d] [its] COVID policies to further reduce the spread of potentially harmful content.” Id., at 2701.
White House-Facebook conversations about misinformation did not end there. In September, the Wall Street Journal wrote about the spread of misinformation on Facebook, and Facebook preemptively reached out to the White House to clarify. 8 id., at 2681. Flaherty asked (again) for information on “how big the problem is, what solutions you‘re implementing, and how effective they‘ve been.” Ibid.
Interactions related to COVID-19 misinformation continued until at least June 2022. Id., at 2663. At that point, Facebook proposed discontinuing its reports on misinformation, but assured the White House that it would be “happy to continue, or to pick up at a later date, . . . if we hear from you that this continues to be of value.” Ibid. Flaherty asked Facebook to continue reporting on misinformation because the Government was preparing to roll out COVID-19 vaccines for children under five years old and, “[o]bviously,” that rollout “ha[d] the potential to be just as charged” as other vaccine-related controversies. Ibid. Flaherty added that he “[w]ould love to get a sense of what you all are planning here,” and Facebook agreed to provide information for as long as necessary. Ibid.
What these events show is that top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured. See, e.g., 30 id., at 9361, 9365, 9369, 9385-9388. And Facebook‘s reactions to these efforts were not what one would expect from
B
While all this was going on, Jill Hines and others were subjected to censorship. Hines serves as the co-director of Health Freedom Louisiana, an organization that advocated against vaccine and mask mandates during the pandemic. Over the course of the pandemic—and while the White House was pressuring Facebook—the platform repeatedly censored Hines‘s speech.
For instance, in the summer and fall of 2021, Facebook removed two groups that Hines had formed to discuss the vaccine. 4 id., at 1313-1315. In January 2022, Facebook restricted posts from Hines‘s personal page “for 30 days . . . for sharing the image of a display board used in a legislative hearing that had Pfizer‘s preclinical trial data on it.” Id., at 1313. In late May, Facebook restricted Hines for 90 days for sharing an article about “increased emergency calls for teens with myocarditis following [COVID] vaccination.” Id., at 1313-1314. Hines‘s public pages, Reopen Louisiana and Health Freedom Louisiana, were subjected to similar treatment. Facebook‘s disciplinary actions meant that both public pages suffered a drop in viewership; as Hines put it,
II
Hines and the other plaintiffs in this case brought this suit and asked for an injunction to stop the censorship campaign just described. To maintain that suit, they needed to show that they (1) were imminently threatened with an injury in fact (2) that is traceable to the defendants and (3) that could be redressed by the court. Lujan, 504 U. S., at 560-561; O‘Shea v. Littleton, 414 U. S. 488, 496 (1974). Hines satisfied all these requirements.
A
Injury in fact. Because Hines sought and obtained a preliminary injunction, it was not enough for her to show that she had been injured in the past. Instead, she had to identify a “real and immediate threat of repeated injury” that existed at the time she sued—that is, on August 2, 2022. O‘Shea, 414 U. S., at 496; see also Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 191 (2000); Mollan v. Torrance, 9 Wheat. 537, 539 (1824).
The Government concedes that Hines suffered past injury, but it claims that she did not make the showing needed to obtain prospective relief. See Brief for Petitioners 17. Both the District Court and the Court of Appeals rejected this argument and found that Hines had shown that
B
Traceability. To sue the White House officials, Hines had to identify a “causal connection” between the actions of those officials and her censorship. Bennett v. Spear, 520 U. S. 154, 169 (1997). Hines did not need to prove that it was only because of those officials’ conduct that she was censored. Rather, as we held in Department of Commerce v. New York, 588 U. S. 752 (2019), it was enough for her to show that one predictable effect of the officials’ action was that Facebook would modify its censorship policies in a way that affected her. Id., at 768.
Hines easily met that test, and her traceability theory is at least as strong as the State of New York‘s in the Department of Commerce case. There, the State claimed that it would be hurt by a census question about citizenship. The State predicted that the question would dissuade some noncitizen households from complying with their legal duty to complete the form, and it asserted that this in turn could cause the State to lose a seat in the House of Representatives, as well as federal funds that are distributed on the basis of population. Id., at 766-767. Although this theory depended on illegal conduct by third parties and an attenuated chain of causation, the Court found that the State had established traceability. It was enough, the Court held,
This is not a demanding standard, and Hines made the requisite showing—with room to spare. Recall that officials from the White House and Surgeon General‘s Office repeatedly hectored and implicitly threatened Facebook to suppress speech expressing the viewpoint that Hines espoused. See supra, at 6-15. Censorship of Hines was the “predictable effect” of these efforts. Department of Commerce, 588 U. S., at 768. Or, to put the point in different terms, Facebook would “likely react in predictable ways” to this unrelenting pressure. Ibid.
This alone was sufficient to show traceability, but here there is even more direct proof. On numerous occasions, the White House officials successfully pushed Facebook to tighten its censorship policies, see supra, at 7, 10, 13, and those policies had implications for Hines.15 First, in March
Second, in May, Facebook told Slavitt that it would “se[t] up more dedicated monitoring” of vaccine content and apply demotions to “a broader set of content.” Supra, at 10. Then, a few weeks later, Facebook also increased demotions of posts by individual Facebook accounts that repeatedly shared misinformation. Ibid. Hines says that she was repeatedly fact-checked for posting about the vaccines, see supra, at 15-16; 4 Record 1314, so these policy changes apparently increased the risk that posts from her personal account would have been hidden from her friends’ Facebook feeds.
Third, in response to the July 2021 comments from the White House and the Surgeon General, Facebook made more changes. Supra, at 13. And from the details Hines provides about her posting history, this policy change would have affected her. For one thing, Facebook “rendered ‘non-recommendable‘” any page linked to another account that had been “removed” for spreading misinformation about COVID-19. 9 Record 2701. Hines says that two of her groups were removed for alleged COVID misinformation around this time. Supra, at 15; 4 Record 1315. So under the new policy, her other pages would apparently be non-recommendable. Perhaps for this reason, though Hines attempted to convince members of her deplatformed group to migrate to a substitute group, only about a quarter of its membership made the move before the substitute group too was removed. Ibid.
The Court reaches the opposite conclusion by applying a new and heightened standard. The Court notes that Facebook began censoring COVID-19-related misinformation before officials from the White House and the Surgeon General‘s Office got involved. Ante, at 20; see also Brief for Petitioners 18. And in the Court‘s view, that fact makes it difficult to untangle Government-caused censorship from censorship that Facebook might have undertaken anyway. See ante, at 20. That may be so, but in the Department of Commerce census case, it also would have been difficult for New York to determine which noncitizen households failed to respond to the census because of a citizenship question and which had other reasons. Nevertheless, the Court did not require New York to perform that essentially impossible operation because it was clear that a citizenship question would dissuade at least some noncitizen households from responding. As we explained, “Article III ‘requires no more than de facto causality,‘” so a showing that a citizenship question affected some aliens sufficed. Department of Commerce, 588 U. S., at 768.
Here, it is reasonable to infer (indeed, the inference leaps out from the record) that the efforts of the federal officials affected at least some of Facebook‘s decisions to censor Hines. All of Facebook‘s demotion, content-removal, and deplatforming decisions are governed by its policies.16 So 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 decisions. Nothing more is needed. What the Court seems to want are a series of ironclad links from a particular coercive communication to a particular change in Facebook‘s rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.
In addition to this heightened linkage requirement, the Court argues that Hines lacks standing because the threat of future injury dissipated at some point during summer 2022 when the officials’ pressure campaign tapered off. Ante, at 25, n. 10. But this argument errs in two critical respects. First, the effects of the changes the officials coerced persisted. Those changes controlled censorship decisions before and after Hines sued.
Second, the White House threats did not come with expiration dates, and 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. 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. Supra, at 14.
C
Redressability. Finally, Hines was required to show that the threat of future injury she faced when the complaint was filed “likely would be redressed” by injunctive relief. FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 380 (2024). This required proof that a preliminary injunction would reduce Hines‘s “risk of [future] harm . . . to some extent.” Massachusetts v. EPA, 549 U. S. 497, 526 (2007) (emphasis added). And as we recently explained, “[t]he second and third standing requirements—causation and redressability—are often ‘flip sides of the same coin.‘” Alliance for Hippocratic Medicine, 602 U. S., at 380. Therefore, “[i]f a defendant‘s action causes an injury, enjoining the action or awarding damages for the action will typically redress that injury.” Id., at 381.
Hines easily satisfied that requirement. For the reasons just explained, there is ample proof that Hines‘s past injuries were a “predictable effect” of the Government‘s censorship campaign, and the preliminary injunction was likely to prevent the continuation of the harm to at least “some extent.” Massachusetts v. EPA, 549 U. S., at 526.
The Court disagrees because Facebook “remain[s] free to enforce . . . even those [policies] tainted by initial governmental coercion.” Ante, at 26. But as with traceability, the Court applies a new and elevated standard for redressability, which has never required plaintiffs to be “certain” that a court order would prevent future harm. Larson v. Valente, 456 U. S. 228, 243-244, n. 15 (1982). In Massachusetts v. EPA, for example, no one could say that the relief sought—reconsideration by the EPA of its decision not to regulate the emission of greenhouse gases—would actually
Similarly, in Department of Commerce, no one could say with any certainty that our decision barring a censorship question from the 2020 census questionnaire would prevent New York from losing a seat in the House of Representatives, 588 U. S., at 767, and in fact that result occurred despite our decision. S. Goldmacher, New York Loses House Seat After Coming Up 89 People Short on Census, N. Y. Times, Apr. 26, 2021.17
As we recently proclaimed in FDA v. Alliance for Hippocratic Medicine, Article III standing is an important component of our Constitution‘s structural design. See 602 U. S., at 378-380. That doctrine is cheapened when the rules are not evenhandedly applied.
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Hines showed that, when she sued, Facebook was censoring her COVID-related posts and groups. And because the White House prompted Facebook to amend its censorship policies, Hines‘s censorship was, at least in part, caused by the White House and could be redressed by an injunction against the continuation of that conduct. For these reasons, Hines met all the requirements for Article III standing.
III
I proceed now to the merits of Hines‘s First Amendment
As the Court held more than 60 years ago in Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963), the Government may not coerce or intimidate a third-party intermediary into suppressing someone else‘s speech. Id., at 67. Earlier this Term, we reaffirmed that important principle in National Rifle Association v. Vullo, 602 U. S. 175, 187-191 (2024). As we said there, “a government official cannot do indirectly what she is barred from doing directly,” id., at 190, and while an official may forcefully attempt to persuade, “[w]hat she cannot do . . . is use the power of the State to punish or suppress disfavored expression,” id., at 188.
In Vullo, the alleged conduct was blunt. The head of the state commission with regulatory authority over insurance companies allegedly told executives at Lloyd‘s directly and in no uncertain terms that she would be “less interested” in punishing the company‘s regulatory infractions if it ceased doing business with the National Rifle Association. Id., at 183. The federal officials’ conduct here was more
The principle recognized in Bantam Books and Vullo requires a court to distinguish between permissible persuasion and unconstitutional coercion, and in Vullo, we looked to three leading factors that are helpful in making that determination: (1) the authority of the government officials who are alleged to have engaged in coercion, (2) the nature of statements made by those officials, and (3) the reactions of the third party alleged to have been coerced. 602 U. S., at 189-190, and n. 4, 191-194. In this case, all three factors point to coercion.
A
I begin with the authority of the relevant officials—high-ranking White House officials and the Surgeon General. High-ranking White House officials presumably speak for and may have the ability to influence the President, and as discussed earlier, a Presidential administration has the power to inflict potentially fatal damage to social media platforms like Facebook. See supra, at 5. Facebook appreciates what the White House could do, and President Biden has spoken openly about that power—as he has every right to do. For instance, he has declared that the “policy of [his] Administration [is] to enforce the antitrust laws to meet the challenges posed by . . . the rise of the dominant Internet platforms,” and he has directed the Attorney General and other agency heads to “enforce the antitrust laws . . . vigorously.” Promoting Competition in the American Economy, Executive Order No. 14036, 3 CFR 609 (2021).19 He has
Previous administrations have also wielded significant power over Facebook. In a data-privacy case brought jointly by the Department of Justice and the Federal Trade Commission, Facebook was required “to pay an unprecedented $5 billion civil penalty,” which is “among the largest civil penalties ever obtained by the federal government.” Press Release, Dept. of Justice, Facebook Agrees To Pay $5 Billion and Implement Robust New Protections of User Information in Settlement of Data-Privacy Claims (July 24, 2019).22
A matter that may well have been prominent in Facebook‘s thinking during the period in question in this case was a dispute between the United States and the European Union over international data transfers. In 2020, the Court of Justice of the European Union invalidated the mechanism for transferring data between the European Union and United States because it did not sufficiently protect EU citizens from Federal Government surveillance. Data Protection Comm‘r v. Facebook Ireland Limited, Case C-311/18 (2020). The EU-U. S. conflict over data privacy hindered Facebook‘s international operations, but Facebook could
It is therefore beyond any serious dispute that the top-ranking White House officials and the Surgeon General possessed the authority to exert enormous coercive pressure.
B
1
Second, I turn to of the officials’ communications with Facebook, which possess all the hallmarks of coercion that we identified in Bantam Books and Vullo. Many of the White House‘s emails were “phrased virtually as orders,” Bantam Books, 372 U. S., at 68, and the officials’ frequent follow-ups ensured that they were understood as such, id., at 63. To take a few examples, after Flaherty read an article about content causing vaccine hesitancy, he demanded to know that [Facebook was] trying” to combat the issue and “to know that you‘re not playing a shell game with us when we ask you what is going on.” 30 Record 9365; see supra, at 7. The next month, he requested “assurances, based in data,” that Facebook was not “making our country‘s vaccine hesitancy problem worse.” 30 Record 9371; see supra, at 7-8. A week after that, he questioned Facebook about its policies “for removal vs demoting,” and when the platform did not
Various comments during the July pressure campaign likewise reveal that the White House and the Surgeon General‘s Office expected compliance. At the press conference announcing the Surgeon General‘s recommendations related to misinformation, Psaki noted that the White House “engage[s] with [Facebook] regularly,” and Facebook “certainly understand[s] what our asks are.” Supra, at 11. The next day, she expressed confidence that Facebook would “make decisions about additional steps they can take.” 78 Record 25175; see supra, at 12. And eventually, the Surgeon General‘s Office prompted Facebook for “an update of any new/additional steps you are taking with respect to health misinformation in light of” the July 15 advisory. 9 Record 2703; see supra, at 13.
These demands were coupled with “thinly veiled threats” of legal consequences. Bantam Books, 372 U. S., at 68. Three instances stand out. Early on, when the White House first expressed skepticism that Facebook was effectively combatting misinformation, Slavitt informed the platform that the White House was “considering our options on what to do about it.” 30 Record 9364; see supra, at 7. In other words, if Facebook did not “solve” its “misinformation” problem, the White House might unsheathe its potent authority. 30 Record 9364.
The threat was made more explicit in May, when Psaki paired a request for platforms to “stop amplifying untrustworthy content” with a reminder that President Biden “supports . . . a robust anti-trust program.” 78 Record 25170-25171 (emphasis deleted); May 5 Press Briefing; see also supra, at 9. The Government casts this reference to legal consequences as a defense of individual Americans
Finally, in July, the White House asserted that the platforms “should be held accountable” for publishing misinformation. 61 Record 19400; see supra, at 11-13. The totality of this record—constant haranguing, dozens of demands for compliance, and references to potential consequences—evince “a scheme of state censorship.” Bantam Books, 372 U. S., at 72.
2
The Government tries to spin these interactions as fairly benign. In its telling, Flaherty, Slavitt, and other officials merely “asked the platforms for information” and then “publicly and privately criticized the platforms for what the officials perceived as a . . . failure to live up to the platforms’ commitments.” Brief for Petitioners 31. References to consequences, the Government claims, were “fleeting and general” and “cannot plausibly be characterized as coercive threats.” Id., at 32.
This characterization is not true to what happened. Slavitt and Flaherty did not simply ask Facebook for information. They browbeat the platform for months and made it clear that if it did not do more to combat what they saw as misinformation, it might be called to account for its shortcomings. And as for the supposedly “fleeting” nature of the numerous references to potential consequences, death threats can be very effective even if they are not delivered every day.
This argument introduces a new understanding of the term “bully pulpit,” which was coined by President Theodore Roosevelt to denote a President‘s excellent (i.e., “bully”25) position (i.e., his “pulpit“) to persuade the public.26 But Flaherty, Slavitt, and other officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. See Committee Report 1-2. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of the President‘s bully pulpit. That stretches the concept beyond the breaking point.
In any event, the Government is hard-pressed to find any prior example of the use of the bully pulpit to threaten censorship of private speech. The Government cites four instances in which past Presidents commented publicly about the performance of the media. President Reagan lauded the media for “tough reporting” on drugs. Reagan Presidential Library & Museum, Remarks to Media Executives at a
The Government‘s last example is a 1915 speech in which President Wilson deplored false reporting that the Japanese were using Turtle Bay, California, as a naval base. The American Presidency Project, Address at the Associated Press Luncheon in New York City (Apr. 20, 1915).29 Speaking to a gathering of reporters, President Wilson proclaimed: “We ought not to permit that sort of thing to use up the electrical energy of the [telegraph] wires, because its energy is malign, its energy is not of the truth, its energy is mischief.” Ibid. Wilson‘s comment is best understood as metaphorical and hortatory, not as a legal threat. And in any event, it is hard to see how he could have brought about censorship of telegraph companies because the Mann-
C
Finally, Facebook‘s responses to the officials’ persistent inquiries, criticisms, and threats show that the platform perceived the statements as something more than mere recommendations. Time and time again, Facebook responded to an angry White House with a promise to do better in the future. In March, Facebook attempted to assuage the White House by acknowledging “[w]e obviously have work to do to gain your trust.” 30 Record 9365. In April, Facebook promised to “more clearly respon[d] to [White House] questions.” Id., at 9371. In May, Facebook “committed to addressing the defensive work around misinformation that you‘ve called on us to address.” 9 id., at 2698. In July, Facebook reached out to the Surgeon General after “the President‘s remarks about us” and emphasized its efforts “to better understand the scope of what the White House expects from us on misinformation going forward.” Id., at 2690. And of course, as we have seen, Facebook repeatedly changed its policies to better address the White House‘s concerns. See supra, at 7, 10, 13.
The Government‘s primary response is that Facebook occasionally declined to take its suggestions. Reply Brief 11; see, e.g., supra, at 10. The implication is that Facebook must have chosen to undertake all of its anti-misinformation efforts entirely of its own accord.
That is bad logic, and in any event, the record shows otherwise. It is true that Facebook voluntarily undertook some anti-misinformation efforts and that it declined to make
Internal Facebook emails paint a clear picture of subservience. The platform quickly realized that its “handling of [COVID] misinformation” was “importan[t]” to the White House, so it looked for ways “to be viewed as a trusted, transparent partner” and “avoid . . . public spat[s].” Committee Report 181, 184, 188. After the White House blamed Facebook for aiding an insurrection, the platform realized that it was at a “crossroads . . . with the White House.” Id., at 294. “Given what is at stake here,” one Facebook employee proposed reevaluating the company‘s “internal methods” to “see what further steps we may/may not be able to take.” Id., at 295. This reevaluation led to one of Facebook‘s policy changes. See supra, at 8-10.
Facebook again took stock of its relationship with the White House after the President‘s accusation that it was “killing people.” Internally, Facebook saw little merit in many of the White House‘s critiques. One employee labeled the White House‘s understanding of misinformation “completely unclear” and speculated that “it‘s convenient for them to blame us” “when the vaccination campaign isn‘t going as hoped.” Committee Report 473. Nonetheless, Facebook figured that its “current course” of “in effect explaining ourselves more fully, but not shifting on where we draw the lines,” is “a recipe for protracted and increasing acrimony with the [White House].” Id., at 573. “Given the bigger fish we have to fry with the Administration,” such as the EU-U. S. dispute over “data flows,” that did not “seem like a great place” for Facebook-White House relations “to be.” Ibid. So the platform was motivated to “explore some moves that we can make to show that we are trying to be
In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands. And Facebook‘s quavering responses to those demands show that it felt a strong need to yield.
For these reasons, I would hold that Hines is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.
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For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.