Cases & Developments

Opinion partially reversing dismissal and remanding. Plaintiff, a former pharmacy student at the University of Tennessee Health Science Center College of Pharmacy brought claims asserting violation of the First Amendment against the University President, members of the University Board of Trustees, and the Dean of the College of Pharmacy after she was twice investigated for alleged violation of the College’s professional standards due to anonymous complaints about posts to her pseudonymous social media accounts. After the second investigation deemed her posts “sexual,” “crude,” and “vulgar” in violation of the College’s “Standards for Student Professionalism Conduct” – and although the Dean reversed the Committee’s decision to dismiss plaintiff from her studies – plaintiff sought declaratory relief and an injunction blocking the continued application of the College’s Professionalism Policies, which she alleged are vague and overly broad, as well as damages. The University sought dismissal and attached documents to their motion. While those motions were pending, plaintiff graduated from the College, and the University sought to dismiss her nonmonetary claims as moot. The district granted both motions, and in doing so relied upon the attachments to the first motion to dismiss. The Sixth Circuit reversed in part, and conducted a de novo review of the remaining monetary damages claims, disregarding the “inappropriate attachments” considered by the district court in its ruling on the first motion pursuant to Fed. R. Civ. P. 12(b)(6). The Sixth Circuit distinguished Yoder v. Univ. of Louisville, wherein a nursing student was expelled for inappropriate blog posts that both identified her as a student and violated the confidentiality of her patients, reasoning that in the instant case, plaintiff’s pseudonymous “speech did not identify her with the college, had no connection to her studies, and did not lead to disruption” and therefore, absent “a genuine educational purpose for regulating plaintiff’s speech [on sexuality, fashion, and song lyrics], her communications fell safely within the confines of the First Amendment protection.” Allowing that postsecondary institutions maintain legitimate pedagogical “interest[s] in teaching students to comply” with professional standards, the Court ruled that the University’s potentially applicable policies were not properly before them or the lower court since they were beyond the four corners of the complaint. The Court also found that plaintiff plausibly alleged that the University’s multiple investigations into her speech, vote to expel her, and implication that continued speech could compromise her professional studies were sufficiently chilling to survive dismissal, and thus, remanded plaintiff’s First Amendment damage claims.  

Opinion vacating the judgment of the Fifth and Eleventh Circuits and remanding. NetChoice, a trade association that includes Facebook and YouTube, brought facial challenges to statutes enacted in 2021 by Florida and Texas regulating content moderation by large social-media companies “restricting covered platforms’ choices about whether and how to display user-generated content to the public” and requiring platforms to give individualized explanations of their reasons for content-moderation choices. The district courts granted preliminary injunctions. The Eleventh Circuit affirmed, while the Fifth Circuit reversed. The Supreme Court vacated, holding that the courts below failed to properly assess the scope of the facial challenges to the laws at issue, instead addressing how they applied to Facebook and YouTube in particular. The Court clarified that when “platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices” entitled to First Amendment protection. It further held that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”   

Opinion reversing the judgment of the Fifth Circuit and remanding. Plaintiffs, Missouri, Louisiana, and five individual social-media users, sued “dozens of Executive Branch officials and agencies,” alleging that they had violated the First Amendment by encouraging or coercing various social media platforms, including Facebook and Twitter, to remove, demote, or otherwise treat as “misinformation” many of plaintiffs’ postings related to COVID-19 vaccines and policy and the 2020 elections. The district court granted a sweeping preliminary injunction, and the Fifth Circuit affirmed, though it limited the injunction to provide that “defendants, and their employees and agents, shall not ‘coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including though altering their algorithms, posted social-media content containing protected free speech.’” The Supreme Court stayed the injunction and granted certiorari. In reversing the judgment of the Fifth Circuit, the Supreme Court held that plaintiffs lacked standing to seek injunction against the defendants, finding that plaintiffs had not made a clear showing that (1) the alleged injuries were the result of the defendants’ actions rather than the independent content moderation practices of the platforms or (2) there is a substantial risk that they would face similar alleged restrictions in the near future.