71. Murthy v. Missouri and the Court's Culture-War Docket
Today's argument in the social media jawboning case is a perfect illustration of how the Supreme Court has been (and has allowed itself to be) dragged into the middle of the culture wars.
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Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):
On the Docket
The Court made lots of medium-sized news last week, including, on Friday, the handing down of seventh, eighth, and ninth(-ish) opinions of the term (yes, the Court is still way behind even its slow recent pace for getting decisions out):
The biggest of the three was Lindke v. Freed. The basic issue in whether, when public officials block users or otherwise restrict content on publicly accessible social media accounts, they are “state actors” whose conduct must comport with the First Amendment (which, among other things, imposes very sharp limits on acting against speech based on its content). For a unanimous Court, Justice Barrett delivered that most textbook law school exam answer: “Sometimes.” Specifically, the Court articulated a two-part test: an official will be engaging in state action if and only if they “both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” I’ll try to say more about this ruling in a future issue. What should hopefully be obvious is that, although this test makes lots of sense in the abstract (separating when the official is acting as an official from when they are not), it’s going to be quite a mess to apply it to all of the permutations that are out there in the real world—not just the different types of social media (and other electronic forums for public interaction), but the different contexts in which public officials might be using those fora for communicating. Simply put, it’s going to provoke a lot of litigation (and headaches) in lower courts.
Although it came down last (because it was “per curiam,” and not signed), I’m putting the companion case to Lindke next. In O’Connor-Ratcliff v. Garnier, the Court, in an unsigned, three-page opinion, sent a similar case back to the Ninth Circuit for reconsideration in light of its decision in Lindke. No surprise there.
Finally, Pulsifer v. United States produced a split we might start to see more often in cases about the interpretation of criminal statutes—with Justice Kagan writing for a 6-3 majority and Justice Gorsuch writing for himself and Justices Sotomayor and Jackson in dissent. At issue was a provision of federal sentencing law that exempts a defendant from a mandatory minimum sentence if their case meets certain conditions. The fight was over whether the case needs to meet all of the three statutory conditions (what the majority held), or just one of them (what the dissent would have held). FWIW, I’m on Team Gorsuch here, but if nothing else, it’s another good example of how even avowed “textualists” can read the same text differently.
We also got three significant orders last week. On Tuesday, Justice Alito further extended his two administrative stays of Texas’s controversial new immigration law, which a district court had preliminarily enjoined only to have the Fifth Circuit stay that injunction “administratively” (albeit indefinitely). Alito had initially set his administrative stays to expire at 5:00 ET on Wednesday, but he pushed that deadline to 5:00 ET today. In other words, the Texas law (“SB4”) will go into effect this afternoon unless Alito extends that deadline again or the full Court vacates the Fifth Circuit’s stay. Look for one of those two things to happen before then.
And on Friday, the Court turned away, over no public dissents, an emergency application from a student group at West Texas A&M challenging the university’s (rather flagrantly content-based) ban on drag shows. Chris Geidner (whose “Law Dork” Substack is a great follow) has more on the dispute here.
In the “dog that didn’t bark” department, last week came and went without any action on the now-long-pending emergency application from Idaho seeking to put back into effect its ban on gender-affirming medical care for transgender adolescents (the plaintiffs’ response was filed on February 28!). Look for some kind of ruling in that case (Labrador v. Poe) sometime this week.
And in addition to some kind of ruling on the Texas immigration law, the Court may also rule as soon as today on Peter Navarro’s late-arising emergency application seeking to keep him from having to report to federal prison tomorrow to serve his four-month sentence for contempt of Congress. On Friday, Chief Justice Roberts ordered the federal government to respond by 2 p.m. ET today—although it’s hard to imagine that the Court wants to get anywhere near this case. Indeed, it wouldn’t shock me if the Chief Justice denied this one on his own.
As if all that wasn’t enough, today also begins the Court’s busy March argument calendar—with six arguments this week and five next week, the most newsworthy of which is almost certainly next Tuesday’s hearing in the mifepristone case. The biggest case of this week (IMHO) is the subject of the “Long Read,” below.
Oh—and we also expect one or more opinions in argued cases at 10 ET tomorrow…
The One First “Long Read”: Murthy as a Microcosm
There is quite a lot to say about the second case in which the Supreme Court is set to hear argument later today—Murthy v. Missouri. At its core, the case arises from allegations that the Biden administration coerced social media companies into taking down or otherwise moderating posts conveying dis- or mis-information related to COVID-19 vaccinations—in violation of the First Amendment rights of those whose posts were thus moderated.
Over at Just Security, for instance, Justin Hendrix and Ryan Goodman have a lengthy post explaining how the entire case is predicated on a series of dubious factual claims (if not out-and-out misrepresentations), many of which have been accepted by the lower courts without serious pushback. There’s a lot to commend their analysis—and their concern that justices who live primarily in the right-wing media ecosystem will be (and already have shown themselves to be) taken by these spurious claims. Mary McCord has an excellent piece of her own about the ominous implications of a world in which the government is powerless to work closely with social media platforms to protect national security. And other excellent discussions of the merits abound. (There’s also my earlier post about the case from October.)
As usual, though, I want to focus on something that’s largely getting overlooked in the public commentary, even though it’s actually compounding some of the problems being flagged by other observers. Specifically, I think it’s worth underscoring the unusual (but oddly non-unique) posture in which this case has reached the Supreme Court.
Let’s start with where it was filed. The lawsuit, which includes three private plaintiffs and two states (Missouri and Louisiana), was filed in the Monroe Division of the U.S. District Court for the Western District of Louisiana. That’s not where the Louisiana state government sits (Baton Rouge is in the Middle District); it’s not where any significant U.S. government presence is located; but, at least at the time the suit was filed, it was a division in which 100% of new civil cases were assigned to Judge Terry Doughty—a Trump appointee with a track record as a well-known state court judge in Louisiana.1
Doughty, in turn, issued a stunningly broad injunction—not just in its geographic scope (barring contacts between the government defendants and social media companies anywhere in the country), or in the breadth of the standing it recognized, but in its content (effectively barring a wide—and vague—array of speech that was aimed at reducing the spread of mis- and dis-information. Indeed, as I’ve written about before, the injunction is effectively a prior restraint on speech—since it bars the enjoined defendants from communicating in advance. And all based on what could charitably be described as a thin record—not of the federal government’s effort to combat mis- and dis-information, but of the extent to which the social media companies at which those efforts were directed felt any real coercion or threat of adverse action if they didn’t cooperate.
The federal government, not surprisingly, immediately appealed and sought a stay of Doughty’s injunction pending appeal. And although the Fifth Circuit narrowed the injunction in some significant respects, it preserved it in others, while denying the Biden administration’s application for a stay as moot (it wasn’t). Under the Fifth Circuit’s ruling, the large number of federal defendants:
shall take no actions, formal or informal, directly or indirectly, to 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. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
The federal government then sought, and obtained, a stay directly from the Supreme Court—over a public dissenting opinion from Justice Alito, joined by Justices Thomas and Gorsuch.
If this posture sounds familiar, that’s because the mifepristone case followed a remarkably similar path. Right-wing plaintiffs seeking to challenge the conduct of the federal government through a lawsuit that could have been filed anywhere in the country chose to file in a single-judge division in the Fifth Circuit; they obtained remarkably broad nationwide relief from their hand-picked district judge, who, along the way, embraced a radically expanded view of Article III standing; they saw the Fifth Circuit narrow that relief only somewhat on appeal; and then they saw the Supreme Court freeze the district court’s ruling in full pending appeal. In other words, these cases got rocketed up to the Supreme Court because they could be filed before the plaintiffs’ preferred judges. Even if, in a world in which these cases would’ve been randomly assigned among the judges of the district in which they were filed, plaintiffs still would’ve chosen these fora, the odds of getting these specific rulings would’ve gone down dramatically.
In last Thursday’s bonus issue, I wrote about the Judicial Conference’s proposed new effort to rein-in this kind of “judge shopping.” That effort has provoked revealing push-back from Republican politicians and right-wing commentators—who, all-but saying the quiet part out loud, are upset that the new policy will make it harder for plaintiffs to steer ideologically charged disputes to ideologically sympathetic judges.
There’s a lot to say about why these critiques are—forgive me—dumb. To be sure, if the point is that single-judge divisions can be defended in the abstract, I don’t disagree. For purely local cases, there are historical and convenience-based reasons to have them, especially when a small number of judges have to cover a large geographic area (as in much of Texas). But judge shopping, as such, has no real defense (and no, whataboutism is not a real defense)—especially in cases, like Murthy and the mifepristone case, in which the plaintiffs are seeking nationwide relief. Just because something wasn’t expressly prohibited by the relevant rules at the time doesn’t mean that it’s a good practice for preserving public faith in the judiciary. And the fact that a principal objection to the new policy is that it will especially disadvantage right-wing plaintiffs seems to … underscore why the policy was needed.
But whereas the absence of any defense of judge shopping is undeniable enough in the abstract, the fact that the Supreme Court finds itself having to resolve a nasty culture-war dispute based upon a highly contested factual record amassed by a hand-picked district judge (and that it will have to rinse and repeat next week) ought to drive home the costs of judge shopping—not just to public confidence in the judicial system, writ large, but to the Supreme Court. After all, as much as the justices may want to wade into more of these culture-war mudfights than is ideal for the Court as an institution, these cases have all the appearance of disputes that the Court had to take—because the lower courts played right into the plaintiffs’ hands. And although the new Judicial Conference policy is a salutary development, some acknowledgement from the Supreme Court of how it got into this mess in the first place certainly wouldn’t hurt.
SCOTUS Trivia: Two-Justice Circuits
This is getting a bit into the weeds, but in thinking about single-judge divisions, I was reminded of the original approach to circuit-riding under the Judiciary Act of 1789. As readers likely know, today, each of the Supreme Court’s nine members acts as “Circuit Justice” for one or more of the 13 federal circuit courts. Each circuit having a single circuit justice dates all the way to 1802. But there was a brief period (from 1789 to 1801) in which the circuits actually had two justices each.
Section 4 of the Judiciary Act created three circuits: The Eastern, Middle, and Southern Circuits (those were the days). Each state within the circuit had its own district (so, the Circuit Court for the District of New Jersey and the Circuit Court for the District of Delaware were, technically, different courts), and the circuit court was formed by having two justices join the local district judge—something that the Act required to take place at least twice each year. The result was … a lot of circuit-riding.
The Federalists tried to eliminate circuit-riding altogether as part of the Judiciary (or “Midnight Judges”) Act of 1801—which attempted to create a new phalanx of (Federalist) circuit judges. After repealing the 1801 Act (and thus eliminating the new circuit judgeships), the Jeffersonians brought back circuit-riding in the Judiciary Act of 1802, but now with only one justice per circuit (the Act also doubled the number of circuits from three to six). From 1802 to 1866, Congress hewed to that one-justice-per-circuit model. It hasn’t returned to it since.
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Until then, happy Monday, everyone! I hope that you have a great week—even if you’re pro-judge shopping.
Judge Doughty has since become the Chief Judge of the Western District.
The decision in Lindke v. Freed makes my head spin, and not in a good way. Stating that the person is "engaging in state action if and only if they “both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” As you mentioned, it raises so many questions. What is meant by "actual" authority and how would you determine whether it was being exercised? When using social media most people have their professional/business titles, or at least descriptions, in their bios because they want to use that information to lend credence to their words. There are other people who don't need those titles because they are at a national level of recognition. If someone re-posts something would that fall into these categories? The category of "actual authority" is undermined because most people automatically associate the person with the office and would have no idea (and no way to ascertain) whether that person has "actual" authority to speak. It would be helpful if such individuals had an official and a different personal social media account. It wouldn't solve all the problems but it would help. I also don't see every governmental office issuing a statement concerning who has the authority to speak for that office. Sometimes, lawyers do seem determined to make a lot of busy work.
The problem is far worse than the encouragement of hard-right content. It's the active suppression of anything the algorithm doesn't like, which is everything critical of hard-right content. The algorithm needs clicks like a junkie needs his fix, so it loves the anti-abortion zealots and the IDF apologists. "Comment failed to post" for everyone else.