State attorneys general have demonstrated a pattern of pushing the boundaries on theories of standing as they pursue legal challenges on various contentious issues. This approach was recently spotlighted by the U.S. Supreme Court in Murthy v. Missouri, a First Amendment case that questioned federal communications with social media platforms regarding content suppression related to multiple high-profile subjects, including mask mandates, Covid-19, and the 2020 election.
The case was brought to court by five private plaintiffs who contended that their posts had been removed or suppressed. These plaintiffs were joined by the attorneys general of Missouri and Louisiana. The states argued that their injury included both the right to speak and the right to listen to their constituents’ unfiltered social media posts. The Fifth Circuit Court had initially upheld these claims, asserting that social-media censorship due to federal coercion directly harmed the states.
However, the Supreme Court reversed this decision, concluding that the plaintiffs did not provide sufficient evidence of injury. Specifically, the court found no causal relationship between the removal of state representatives’ posts and federal government action. Furthermore, the court dismissed the states’ “right to listen” theory, noting a lack of specific speakers or topics that the states were prevented from hearing.
Despite the setback in Murthy, state attorneys general are expected to persist in exploring broad theories of standing. Only this month, another case, FDA v. Alliance for Hippocratic Medicine, was similarly decided on standing grounds. Three states have intervened to present alternative standing theories based on aggregate monetary injury and the harm to their sovereignty in legislating and enforcing their laws.
The efforts of state attorneys general in developing expansive standing theories are likely to continue due to their strategic value in advancing significant policy objectives. While Murthy may represent a judicial limitation on such broad theories, the overall trend suggests that state attorneys will persist in crafting wide-ranging arguments of harm where questions of standing affect high-stakes legal decisions.
For further details, you can read the full discussion on Bloomberg Law here.