Murthy, et al. v. Missouri, et al., 23A243. Order extending stay to September 27 entered September 22, 2023.
With briefing by principal parties completed, on Friday the 22nd, the day on which its initial stay would dissolve, Justice Alito extended until September 27 the administrative stay of an injunction against federal officials issued by a federal district court on July 4th.
The Federal District Court for the Western District of Louisiana issued a 155 page memorandum detailing based the court’s perception that federal officials had unlawfully coerced social media entities in their moderation activities during the Covid-19 pandemic, which actions violated plaintiffs’ First Amendment rights. The accompanying order enjoined federal officials from further such acts.
On appeal, the U.S. Court of Appeals for the Fifth Circuit agreed with the government officials’ arguments that the trial court’s order was overbroad and vague. The three judge appellate panel dismissed many federal defendants against whom no case had been articulated, and, most significantly, narrowed yet maintained the gist of the trial court’s order enjoining federal officials from coercive activities with social media platforms.
A petition to stay or, in the alternative to grant certiorari, was submitted to Justice Alito on September 14th.
Federal officials reiterated their arguments that the plaintiffs have no standing to bring the case, that federal officials cannot and ought not be constrained by the courts. The federal government has its own voice, the officials submit, and ought not be restrained in voicing its policies, including criticisms of others.
The federal officials have asserted that they only coerced, but never compelled, the social media companies. However, they appear to argue that they cannot discern the difference between those activities, and thus remain forever imperiled by the trial and appellate court’s orders.
The extended stay will, absent further action, lapse on the day after the Supreme Court’s first case conference of the 2023 term on September 26. Whether the justices will consider the government officials’ petition to consider the petition as one seeking certiorari is anyone’s guess. The first conference of the term is dubbed the “long conference” because of the volume of business for the justices to attend to before getting underway for the term. Whether the justices will seize the opportunity to make the conference even longer will likely remain unknown until the 27th.
The significance of this case, as noted by the “Kennedy Plaintiffs,” as amici here, cannot be understated, even in an atmosphere already permeated with not infrequently outlandish hyperbole.
This time it might be true, the Kennedy Plaintiffs have noted.
Justlawful likewise notes that this case seems to have it all. Whether viewed from the perspective of Article III standing or First Amendment concerns. Can individual plaintiffs, strangers to the dialogues between social media platforms and the federal officials, establish an interest affected by those dialogues that a court can redress, particularly where the pandemic has ended? Can federal officials demand that social media platforms revamp their moderation policies so that content providing “misinformation” or “disinformation,” as defined by federal officials, must be removed? Is such activity state action and do social media platforms become state actors in such circumstances, raising constitutional concerns.
As interesting as these issues may be, and as the case may be in conflict with other federal circuit courts’ views, it should be borne in mind that the Roberts Court is a court of incrementalism and not one of activism.
Nonetheless, it cannot escape the Court’s attention that cases raising First Amendment and other constitutional concerns have arisen multiple ways as the internet has assumed center stage in 21st century communications. Where such matters are clamoring for the Court’s attention, judicial conservatism and deference, however wise such principles may otherwise be, may begin to ring hollow here.
As much as it is striking that the Supreme Court of the United States has become a court of first, rather than last, impression as a result of the explosion of emergency petitions, the widespread use of national injunctions, and the expansion of Supreme Court advocacy, this phenomenon is now well established. Leaving all concerned to fend for themselves by denying review is not necessarily a good look for the Court.
Time will tell.
Filings Related to Supreme Court Petition for Stay
23A243 Opposition to Application for Stay
23A243 Reply Supporting Application for Stay
23A243 Brief of Amicus in Opposition to Stay
23A243 Brief of Amicus Kennedy Plaintiffs
23A243 Brief of Amicus Foundation for Freedom Online
23A242 Brief of Amicus State of Ohio
Fifth Circuit and U.S.D.C. Opinions and Orders
23-30445 Missouri v Biden 5th Cir. 9.8.2023
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