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ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES_________________

No. 23A243 (23–411)_________________VIVEK H. MURTHY, SURGEON GENERAL, ET AL. v.
MISSOURI, ET AL.
ON APPLICATION FOR STAY
[October 20, 2023]

The application for stay presented to JUSTICE ALITO andby him referred to the Court is granted. The preliminary
injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, caseNo. 3:22–cv–01213, as modified by the United States Courtof Appeals for the Fifth Circuit on October 3, 2023, caseNo. 23–30445, is stayed. The application for stay is also
treated as a petition for a writ of certiorari, and the petitionis granted on the questions presented in the application. The stay shall terminate upon the sending down of
the judgment of this Court.
JUSTICE ALITO, with whom JUSTICE THOMAS andJUSTICE GORSUCH join, dissenting from grant of application
for stay.
This case concerns what two lower courts found to be a“coordinated campaign” by high-level federal officials tosuppress the expression of disfavored views on important
public issues. Missouri v. Biden, ___ F. 4th ___, ___, 2023
WL 6425697, *27 (CA5, Oct. 3, 2023). To prevent the continuation of this campaign, these officials were enjoinedfrom either “coerc[ing]” social media companies to engage
in such censorship or “active[ly] control[ling]” those companies’ decisions about the content posted on their platforms.
Id., at *7, *15. Today, however, a majority of the Court,
without undertaking a full review of the record and without

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ALITO, J., dissenting

any explanation, suspends the effect of that injunction until
the Court completes its review of this case, an event that
may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our
democratic form of government, and therefore today’s decision is highly disturbing.
This case began when two States, Missouri and Louisiana, and various private parties filed suit alleging that popular social media companies had either blocked their use of
the companies’ platforms or had downgraded their posts ona host of controversial subjects, including “the COVID–19
lab leak theory, pandemic lockdowns, vaccine side effects,election fraud, and the Hunter Biden laptop story.” Id., at*1. According to the plaintiffs, Federal Government officials “were the ones pulling the strings,” that is, these officials “ ‘coerced, threatened, and pressured [the] social-media platforms to censor [them].’ ” Ibid. (alteration inoriginal). Based on extensive findings of fact that spanned
82 pages, the District Court held that the plaintiffs werelikely to be able to prove their claims and were threatenedwith irreparable harm, and it therefore issued a preliminary injunction against a number of Executive Branchagencies and officials. Missouri v. Biden, ___ F. Supp. 3d___, 2023 WL 4335270 (WD La., July 4, 2023).
On appeal, the Court of Appeals agreed with the District
Court’s assessment of the evidence, which, in its words,
showed the existence of “a coordinated campaign” of unprecedented “magnitude orchestrated by federal officialsthat jeopardized a fundamental aspect of American life.”
Missouri v. Biden, 2023 WL 6425697, *27. The Court ofAppeals found that “the district court was correct in its assessment—‘unrelenting pressure’ from certain government
officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’ ” Ibid.
To stop this “campaign,” the injunction, as it now stands,

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3ALITO, J., dissenting

prohibits the covered officials from doing two things. First,
they may not “coerce” social media platforms to make “content-moderation decisions.” Id., at *32. Second, they may
not “meaningfully contro[l]” social media platforms’ “content-moderation” efforts. Ibid. Displeased with these restrictions, the Government filed an emergency application
asking us to stay the effect of this injunction pending certiorari.
Under a straightforward application of the test we use indeciding whether to grant a stay, the Government’s application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant
must show, among other things, “a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).
A stay is an “extraordinary remedy that may only beawarded upon a clear showing that the plaintiff is entitledto such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (discussing the similar standard for an injunction). Thus, the Government in this casemust make a “clear showing” of irreparable harm. And to
do that, it is not enough to “simply sho[w] some ‘possibilityof irreparable injury.’ ” Nken v. Holder, 556 U. S. 418, 434(2009). A mere “ ‘possibility’ standard is too lenient.” Id.,
at 435 (quoting Winter, 555 U. S., at 22). Instead, the Government must prove that irreparable harm is “likel[y].”Hollingsworth, 558 U. S., at 190. Here, the Government’sattempts to demonstrate irreparable harm do not comeclose to clearing this high bar.
Instead of providing any concrete proof that “harm is imminent,” White v. Florida, 458 U. S. 1301, 1302 (1982)(Powell, J., in chambers), the Government offers a series ofhypothetical statements that a covered official might wantto make in the future and that, it thinks, might be chilled.
Application 36–38. But hypotheticals are just that—speculation that the Government “may suffer irreparable harm

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ALITO, J., dissenting

at some point in the future,” not concrete proof. White, 458
U. S., at 1302 (emphasis added). And such speculation does
not establish irreparable harm. Nken, 556 U. S., at 434; seealso Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5(2013) (rejecting similar speculation as insufficient to establish an Article III standing injury).
Moreover, it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided
by the Court’s unreasoned order. The Government claims
that the injunction might prevent “the President and thesenior officials who serve as his proxies” from “speak[ing] tothe public on matters of public concern.” Application 36;
accord, id., at 3 (suggesting that the Fifth Circuit’s decision
implicates “the use of the Office’s bully pulpit to seek to persuade Americans”). The President himself is not subject tothe injunction, see Missouri v. Biden, 2023 WL 6425697,*33, and in any event, the injunction does not prevent anyGovernment official from speaking on any matter or fromurging any entity or person to act in accordance with theGovernment’s view of responsible conduct. The injunction
applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speechrights. Does the Government think that the First Amendment allows Executive Branch officials to engage in suchconduct? Does it have plans for this to occur between now
and the time when this case is decided?
Despite the Government’s conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that thelower courts identified. The majority takes this action in
the face of the lower courts’ detailed findings of fact. But“[w]here an intermediate court reviews, and affirms, a trial
court’s factual findings, this Court will not ‘lightly overturn’
the concurrent findings of the two lower courts.” Easley v.

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5ALITO, J., dissenting

Cromartie, 532 U. S. 234 (2001); see also Glossip v. Gross,
576 U. S. 863, 882 (2015); Graver Tank & Mfg. Co. v. Linde
Air Products Co., 336 U. S. 271, 275 (1949). And the majority suspends the relief afforded below without a word of explanation.
Applying our settled test for granting a stay, I would deny
the Government’s application, but I would specify in the order that in the unlikely event that a concrete occurrence
presents a risk of irreparable harm, the Government canapply for relief at that time, including, if necessary, by filingan emergency application here. Such an order would fully
protect the ability of Executive Branch officials to speak out
on matters of public concern.
At this time in the history of our country, what the Court
has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew thepresentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.