Government Shouldn't Be Able to 'Sidestep' Free Speech Protections, Says Brief

The government “should not be able to mask its censorship behind the guise of private action,” said the Alliance Defending Freedom Tuesday in an amicus brief (docket 3:22-cv-01213) filed in support of Republican attorneys general in a First Amendment case against Biden administration officials in U.S. District Court for Western Louisiana in Monroe.

The AGs for Missouri and Louisiana seek a preliminary injunction against Biden administration defendants barring them from “inducing social-media companies to censor particular contents or to adopt or enforce speech-restrictive content-moderation policies.”

Government offices shouldn't be allowed to “sidestep” protections for free speech, “which are essential for us to remain a free society in which the ‘consent of the governed’ has real meaning, by enlisting the aid of social media companies who have eagerly picked sides and enthusiastically muzzled their opponents,” said the brief.

The “prospect of government officials and private businesses cooperating to silence the free speech of American citizens is alarming,” said the brief, saying government officials should be held “accountable.” The urge to “censor disfavored ideas remains” among government officials, who “fancy themselves on the ‘right side of history’ or the living embodiment of ‘science,’” said the brief. Big tech and social media companies “seemingly share the censorious inclinations” of certain government officials, it said.

Government officials often encourage private sector actors to “silence views they dislike,” said the brief, citing a tweet from Sen. Mark Warner, D-Va., saying he urged Google to improve search results and prevent users who search for abortion clinics and services from being misled. After legislators’ requests, Google announced it would flag pregnancy centers with a “might not provide abortions” label, said the brief, saying, “Legislators spoke, and the social media jumped, censoring pro-life centers in ways the government never could,” it said.

Social media companies don’t have to be transparent about their decision-making process, enabling them to “self-censor” and thus “discriminate covertly and without accountability,” said the brief. That allows “viewpoint-based discrimination” to “fester under their ill-defined censorship policies” and create opportunities for “censorship creep," it said, citing UCLA law professor Eugene Volokh, in “Treating Social Media Platforms Like Common Carriers.”

“All signs point to a growing government influence over social media,” said the brief, referencing Biden administration alerts flagging “misinformation” about COVID-19, the brief said. The government “has no business determining which views are right or wrong, let alone which should be silenced,” it said.