Murthy: Catch Me If You Can

August 9, 2024

Sometimes, a case about standing really is just about standing. But not always. Sometimes a standing analysis reveals, sotto voce (or “esoterically” for all you Straussians¹), a flaw in some aspect of the Court’s substantive jurisprudence. I think Murthy² is one such case. It didn’t really break any new ground on who may bring a claim in federal court, but it did teach us that executive branch employees may try to silence viewpoints with which they disagree so long as they either hide their tracks or fail in the attempt. But if you succeed and don’t hide your tracks, well, then you’re not Murthy, you’re Vullo.³ 

I submit that this is a problem, and that the problem isn’t in the Court’s standing jurisprudence. It’s in how it treats claims that the government is engaging in censorship by proxy. Why won’t the Court entertain an action challenging Murthy’s catch-me-if-you-can executive skulduggery? The answer starts with the misbegotten “coercion” test described in Bantam Books.⁴   

Return with me, if you will, to an era in which something called the “Rhode Island Commission to Encourage Morality in Youth” could exist. The Commissioners, overly zealous, to be sure, had taken to threatening bookstores with non-specific sanctions if they carried material the Commission deemed to promote juvenile dissoluteness. When publishers started receiving order cancellations, they claimed a violation of their First Amendment rights. 

The Court properly held (in my opinion) that such a violation did occur. The path it took to that conclusion, however, caused a denial of standing 61 years later. As with many of the opinions of the era, this one was pretty loose in the joints. So loose, in fact, that in concluding there had been a violation of the First Amendment, the Court saw no need to analyze or even quote its text even once. And, just to foreshadow where I’m going, neither did Murthy. 

Without the constitutional text to anchor and guide its analysis, the Bantam Books opinion wallowed about like a sailing scow in listless seas. The closest the Court came to a rule of interpretation that could be used in subsequent cases was this:  

[T]hough the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim. We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief.⁵ 

Because the analysis did not query the Constitution’s text, it’s unsurprising that the holding it produced would reflect so little of its substance. That’s important, as it turns out, because the Court’s standing analysis is, normatively speaking, largely derivative of how it substantively evaluates the merits of the plaintiff’s claims.⁶ So, if the Court develops a legal theory that doesn’t track the language and structure of the First Amendment, it’s possible (and perhaps even likely) that the question of standing will be resolved differently depending on whether it relies on its prior opinions or, instead, the Constitution’s text. Murthy, I believe, usefully illustrates the divergence between the two. 

The rule derived from Bantam Books is that an executive branch employee may not coerce a second party into censoring the work of a third party. To make the comparison between this rule and the First Amendment’s text easier to see, let’s do a little parsing. The subject of the rule is the executive branch employee. The predicate (the rule’s action, the thing the subject does) is “coerce.” The direct object (that which receives the action) is “the second party.” And the prohibited result of the action is the censorship of a third party’s material. Now let’s compare those components to the Constitution’s text. 

The First Amendment says, as it relates to our subject of interest, that “Congress shall make no law . . . abridging the freedom of speech.” The subject here is the first branch of government (Congress) whereas the subject in the Bantam Books rule is the second branch. The action identified in the text is “make,” as opposed to “coerce.” The direct object is “law,” as opposed to “the second party.” And the prohibited result of the action is “abridging the freedom of speech,” while under Bantam Books it is “censorship of a third party’s material.”   

Aside from the prohibited result, none of the structural parts of the two legal standards correspond at all. As a consequence, they pose entirely different inquiries. The substantive inquiry in Bantam Books is whether an executive branch employee coerced one party into censoring the work of another. The standing inquiry necessarily follows that pattern. It looks for a person who has suffered the prohibited effect (censorship) consequent upon the action (coercion) of the subject (the executive branch employee).    

The substantive inquiry required by the First Amendment is wholly different, and that difference predictably changes the category of those who have standing.  The constitutional question is whether Congress made a law that brings about the abridgment of the freedom of speech—a question that neither Bantam Books nor Murthy addressed, or even acknowledged. But that is the central and indispensable question, the one without which the Court will inevitably return to Bantam Book’s listless seas. I’ll explain why that is so, and then I’ll get to why it so dramatically influences the matter of standing. 

Let me start by offering a proposition without formal proof (at least not here⁷): When we elect a president and empower him to hire employees to help discharge the duties of the presidency, we aren’t electing an authoritarian who may act in whatever way he sees fit. His authority to act is not inherent—it must come from a constitutional grant. If you disagree, then we’ll have need of a much longer conversation. But for purposes of this brief disquisition, perhaps you can spot me the point. 

If that proposition is true, and if the Murthy defendants had the authority to do what they did, it could only be so if there was squirreled away in the U.S. Code or C.F.R. a law or a rule that authorized that activity. Presumably, if pressed, they would point to some statute with a gauzy “necessary and proper”-type clause related to their responsibility to address the topics falling within their respective portfolios. 

Whatever that law is, that’s what the Court is supposed to address in a proper First Amendment analysis. It’s the legitimacy of the law that is at issue because the question the First Amendment asks is whether Congress made a prohibited law. What the presidential employees did is simply evidence of what they understood the law to allow.   

To do a proper standing analysis, therefore, the court must first have in mind the proper substantive question governing the merits of the case. And in Murthy, the question that was supposed to frame the issue of standing, but didn’t, was this: Did Congress make a law that authorizes presidential employees to use the authority and resources of their government positions to convince social media platforms to suppress viewpoints with which they disagree? 

This question, the one the Constitution asks, focuses on what the law says, not on what a presidential employee successfully did. And that changes the standing calculus. When challenging the constitutionality of a law, standing depends on whether you are in the zone of its potential application, not on whether an executive officer has—past tense—perfected a constitutional violation under its auspices. It’s enough that the law allows him to violate a constitutional right and the plaintiff is engaged in activity that creates the opportunity for the violation. The injury that would sustain standing in Murthy, had the Court chosen the First Amendment instead of Bantam Books as the governing statement of the law, was the time and effort that went into preparing and distributing material that was at risk of coming to naught because of a law that allows the executive branch to engage in censorship by proxy. 

So, ultimately, I don’t think Murthy changed the law of standing. It just illustrated that it’s been getting the censorship by proxy analysis wrong for 61 years. Fix that and you fix standing. 

¹ I know, I know. I kid because I love.

² Murthy v. Missouri, 144 S. Ct. 1972 (2024).

³ Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175 (2024).

⁴ Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). It’s also mislabelled and misapplied, but that’s a subject for another day.

⁵ 372 U.S. at 67.

⁶ You don’t have standing unless your “injury [is] concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).

⁷ If you’re interested in this question, please see my concurring opinion in Wisconsin Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497.