DOJ’s Attack on Social Media Injunction ‘Flips’ First Amendment ‘On Its Head’: GOP AGs

The censorship conduct of officials from the White House and four federal agencies “fundamentally transforms online discourse and renders entire viewpoints on great social and political questions virtually unspeakable on social media,” said Friday’s response brief (23-411) at the U.S. Supreme Court in Murthy v. Missouri in support of the injunction that bars those officials from coercing the social media platforms to moderate their content.

The brief was submitted by the Republican attorneys general of Missouri and Louisiana, plus the five individual social media users who won the injunction July 4 from U.S. District Judge Terry Doughty for Western Louisiana in Monroe (see 2307050042). The 5th U.S. Circuit Court of Appeals affirmed the injunction Oct. 3 with significant modifications (see 2310040001).

SCOTUS granted the government’s cert petition to hear the case Oct. 20 over Justice Samuel Alito's strenuous objections (see 2310230003). The court also granted the government’s request for a full stay of the injunction, pending the court’s resolution of the case. Oral argument in Murthy v. Missouri is scheduled for March 18 (see 2401290058).

Having “trampled the free-speech rights” of millions of Americans, the federal officials now complain that SCOTUS can’t stop them “because the government must be allowed to speak freely,” said Friday’s brief: “This argument flips the First Amendment on its head.”

The federal officials would have SCOTUS “protect the government’s campaign to constrain private actors,” said the brief. The government can speak freely on any topic it chooses, but it can’t “pressure and coerce private companies to censor ordinary Americans,” it said. The 2017 SCOTUS decision in Matal v. Tam cautioned that the government-speech doctrine is susceptible to dangerous misuse, and could allow government to silence or muffle the expression of disfavored viewpoints, it said: “That is what the government is doing here.”

It’s “axiomatic” under the 1973 SCOTUS decision in Norwood v. Harrison that a state can’t induce, encourage or promote private persons to accomplish what it’s constitutionally forbidden to accomplish, said the brief. The government “would eviscerate this venerable instruction and allow all manner of government inducement, encouragement, subtle and overt pressure, and conspiracy with private actors to escape First Amendment scrutiny,” it said.

The government’s “cramped theory” of state action “ignores centuries of jurisprudence and contradicts the standards that the government routinely imposes on private parties,” said the brief. “It would make the First Amendment, the most fundamental and most fragile liberty, the easiest of rights to violate,” it said. SCOTUS should affirm the 5th Circuit’s injunction and put an end to arguably the most massive attack against free speech in U.S. history, it said.

Doughty’s 103 pages of factual findings, supported by 591 footnotes, “are not clearly erroneous,” said the brief. The 5th Circuit didn’t hold any of Doughty’s findings erroneous, but it “adopted and summarized them,” it said. The government’s brief “never utters the words ‘clear error,’” it said. Those “unrebutted findings” demonstrate a broad pressure campaign designed to coerce social media companies into suppressing speakers, viewpoints and content disfavored by the government, it said.