First Amendment ‘Must Apply the Brakes’ Against Federal Censorship: Amicus Brief

When federal officials “wield the power of government” to impose an “approved viewpoint” and censor private speech, the First Amendment “must apply the brakes,” said the Americans for Prosperity Foundation in an amicus brief at the U.S. Supreme Court Thursday in Murthy v. Missouri (docket 23-411). The brief is in support of the injunction to bar federal agencies from coercing social media platforms to moderate their content.

It’s the second of two cases before SCOTUS this term that address the same issue of what government can “do indirectly” what it can’t do “directly to limit speech rights,” said the brief. Murthy v. Missouri, like National Rifle Association v. Vullo (docket 22-842), should be "controlled" by Bantam Books v. Sullivan, it said.

That 1963 SCOTUS decision held that the successful efforts of a Rhode Island commission to remove books with disfavored content from bookstores violated the publishers’ First Amendment rights, said the brief. Murthy v. Missouri and NRA v. Vullo are both scheduled to be argued March 18. NRA v. Vullo challenges the actions of the former head of New York's Department of Financial Services to induce banks and insurance companies to avoid doing business with the NRA for fear of reputational harm.

The state and individual plaintiffs in Murthy v. Missouri allege that government officials acted through a variety of social media platforms “to censor a broad range of speech that challenged the government’s viewpoint,” said the brief. The Republican attorneys general of Missouri and Louisiana, plus five individual social media users, rightly don’t seek to impose “constitutional liability” on the platforms, “focusing, as they should, on the government’s actions,” it said. As in NRA v. Vullo, the question in Murthy v. Missouri is whether the government violated the Constitution, “not whether the private intermediaries did,” it said.

The case demonstrates the risk “of an administrative state that seeks to evade constitutional limits and impose its singular view on the country,” said the brief. It’s not about “an individual government employee expressing a personal opinion to a private business,” it said. Nor is it about “a small group of government employees sharing their opinions at a weekend soccer game or on their own social media accounts,” it said.

It instead represents a “widespread and often coordinated effort” to influence the information that private speakers “could convey and receive on social media platforms,” said the brief. The defendants are “a Who’s Who of government officials across sundry functions and with varying degrees of menace,” it said. The “shear breadth of activity straddling seemingly unrelated officials,” ranging from law enforcement to "subject matter specialists" to the White House, “is astounding,” it said.

Bureaucrats don’t sit in "parens patriae over the American people’s thought processes,” said the brief. SCOTUS “has long acknowledged that the government may not censor speech simply to protect listeners from messages it does not want them to hear,” it said. “Whether driven by good intentions or political motivation, the extent of infringing activity challenged here demonstrates the power of the administrative state to impose immense viewpoint discrimination that places the First Amendment at bay,” it said.