The Fifth Circuit Court of Appeals has been overruled a few times in the past few years. You know a court is too conservative when it is too conservative even for the very conservative U.S. Supreme Court. In the latest example, a group of five plaintiffs filed suit in the Western District of Louisiana objecting to the Biden’s administration unofficial pressuring of social media to deal with false content about the pandemic in 2021. The various platforms did indeed moderate their content, to make it more accurate. The five plaintiffs sued saying that that moderation infringed on their free speech rights.

In Murthy v. Missouri, No. 23-411 (June 26, 2024), the Supreme Court went beyond overturning the Fifth Circuit’s opinion. The opinion, written by Justice Barrett, also found the Fifth Circuit had glossed over the complexities of the case. That is judge-speak for the Fifth Circuit engaged in a fundamentally flawed analysis. The Fifth Circuit opinion, issued per curiam, was issued by a panel including Judges Clement, Elrod and Willett.

Standing

The higher court focused on standing. It found the five plaintiffs lacked standing. The plaintiffs included three individuals and two states. None of them, said the court, sought to enjoin the moderation used by the various platforms. Instead, the plaintiffs focused solely on actions taken by the Federal government.

The Fifth Circuit relied on factual findings by the district court. Some of those findings of fact were “clearly” erroneous. One of those erroneous findings was that the U.S. government and platforms had an “efficient report-and-censor relationship.”

Another error consisted of the Fifth Circuit treating the plaintiffs, the defendants and the platforms as a unified whole. But, precedent shows the court should have assessed standing for each claim against each defendant. That showing would entail showing that a particular defendant pressured a particular platform to censor a particular topic before that platform censored a particular plaintiff’s speech.

See the Supreme Court’s opinion here. See the ABA Bar Journal report on that opinion here.