As Eugene writes below, today’s decision in Muti v. Missouri doesn’t tell us much about the very important First Amendment issues being argued before the Court. But it does tell us something useful about standing principles and the role of the Supreme Court.
The court (in an opinion by Judge Barrett) reversed the Fifth Circuit’s decision and declined to hear the case on the merits on the grounds that the plaintiffs did not sufficiently demonstrate that their rights were affected by the resolution of the case, i.e., because they failed to show “eligibility.” prosecution, so the court was not faced with a “case” or “controversy” as required by the Constitution.
Although Judge Barrett’s opinion is lengthy, there are two important overarching points:
First, a position must be stated in a precise and specific way, rather than with a general allegation that something important is going on. As most have said, the Fifth Circuit erred in “methodology.[ing] “It would be a mistake to take a highly general view” and “to view defendants, plaintiffs and platforms as a unified whole.
Our decision makes it clear that “status is not allocated based on numbers.” TransUnion LLC v. Ramirez, 594 US 413, 431 (2021). That is, “Plaintiffs must prove that they have a position against every claim brought by each defendant and every form of relief they seek.” Id. Here, for every defendant, there must be at least one plaintiff with standing to seek an injunction. This requires a certain threshold to prove: that a specific defendant pressures a specific platform to censor a specific topic, and then the platform suppresses a specific plaintiff’s speech on that topic.
With a large set like this, it’s crucial to pay attention to these conditions. Plaintiffs face restrictions on speech on different platforms, on different topics, and at different times. Different groups of defendants communicated at different times, on different platforms, and on different topics. Even if plaintiff, platform, time, content, and defendant line up, those links must be evaluated against the platform’s independent incentives to moderate the content.
This reminder may be particularly relevant in this case because during arguments many justices appeared to have nuanced, fact-specific views on when communications and threats by government officials to third parties violate the First Amendment. They are being asked to set important new precedents in an area where it is difficult to agree on what happened to whom and what actions the courts will actually take.
This reminder is also important in relation to the now-familiar type of public law case in which a group of states or other large litigants raises a broad challenge to an executive branch action and seeks nationwide enforcement of that action. To provide general and equitable relief. In cases like these, it is easy to assume that the court should resolve the issue based on the importance of the issue, the size of the plaintiffs, and the relief sought, but the Court reminds us that this is not the case. No one in court objected to this.
Second, even if the Court did focus on the most compelling plaintiff, platform, time, content, and defendant—Jill Hines’s claims against the CDC and the White House over the influence of her Facebook posts—the Court found that there still was not enough Evidence connects the dots. It’s difficult to tell whether Hines’ Facebook post was removed because of potentially illegal pressure from government officials or because of Facebook’s own (possibly questionable) content moderation policies. (In jargon, this is “traceability.”)
The court found it harder to believe that Facebook would suddenly change its content moderation policies if a federal court ordered the CDC and the White House to stop encouraging Facebook to remove these posts in the future. The ship has set sail. Under standing laws, if you want to obtain an injunction against a government official, it is not enough to prove that they violated your constitutional rights in the past. You must show that they are likely to continue to do so in the future, but only if injunctive relief is not granted. (In jargon, this is “correctability.”)
Justice Alito joined Justices Thomas and Gorsuch in dissenting from these opinions, arguing that they could more confidently connect the dots between injury and Hines’ relief. But because of the issues with scattered positions discussed above, it appears that the best reasons for Hines’ position were not given as much care and factual detail in the brief as in Justice Alito’s dissent. This led to a memorable line from the majority: “It is especially important to let the plaintiffs bear their burden in a case like this, where the record is more than 26,000 pages long and the lower courts have not made any specific causal findings. Relationship findings.[j]Ugis are not like pigs, looking for buried truffles [in the record].” Gross v. Cicero, 619 F. 3d 697, 702 (2010) (internal quotation marks omitted). “The truffle-seeking pig citation is a staple of appellate law and is now cited by the Supreme Court.
Overall, the analysis of the majority’s position seems correct to me, and I agree with Jonathan’s post below that this is a reaffirmation of established principles rather than breaking new ground. It also seems important when placed in a broader context. Until last year, it had become increasingly common for plaintiff groups, sometimes including states, to mount broad challenges to government policies seeking interim relief and bring many significant public law issues onto the federal agenda. Over the past two years, the court has appeared to be enforcing something of a position reset or clampdown — with denials standing here, as well as groups of doctors who have questioned others’ use of mifepristone, and last year’s state administration’s immigration enforcement policies that challenged Biden , some challengers to the constitutionality of the Indian Child Welfare Act, and a group of challengers to the student debt relief program.
All of these cases feature the application of standing principles despite the plaintiffs’ claims that we would code as ideological conservatives, suggesting that standing principles are more than just tools of conservative ideology. And (perhaps coincidentally?) all of these cases overturned Fifth Circuit rulings on standing.
Last year, co-blogger Sam and I wrote (in Appropriate Party, Appropriate Relief):
The legal system has reached the point of exhaustion and futility, like a play on the last night of a high school play where everyone knows the lines but is tired of saying them. As soon as a presidential administration does something important, it will immediately be sued by a coalition of states whose attorneys general belong to the opposing party; the plaintiff states will wrap themselves in “special care” and point to the consequences they may have suffered as a result of the federal policy Downstream costs, this is easy to do because every significant federal policy has costs somewhere; states will seek preliminary injunctions to end federal policies everywhere. Then, because they litigate in friendly district and circuit courts, and because a preliminary injunction analysis is essentially nothing more than a judicial projection of the merits, they are almost certain to get the injunction they seek. So, for the first time in our nation’s history, nearly every major presidential bill is immediately frozen in federal district court.
This new but now familiar practice puts enormous strains on our democratic institutions and the Supreme Court. Nearly every important action they take will be subject to judicial blockage, rather than a presumption of legality for the actions of the political branches. The Supreme Court was forced to act faster without the benefit of penetration of having multiple circuit courts consider the issue. Political branches may even attempt to authorize major policies as purely political maneuvers, knowing that courts will quickly enjoin enforcement of these policies, allowing proponents of the policy to gain access to justice without incurring any of the costs or expenses of the policy. Institutional political scores. This is bad law and bad democracy. It can’t last forever.
Optimistically hoping that the Supreme Court is on the verge of a “course correction,” we then write, “Perhaps recent terminology demonstrates the truth of Stein’s Law: ‘If
Some things can’t last forever, they stop.
