16 GOP AGs Urge SCOTUS to Affirm Social Media Injunction vs. Biden Officials

The “extensive federal censorship campaign” outlined in the “thorough opinions” of the district court and the 5th U.S. Circuit Court of Appeals undermines “deliberative democracy,” said 16 Republican state attorneys general in a U.S. Supreme Court amicus brief Friday (docket 23-411) in Murthy v. Missouri in support of the injunction to bar Biden administration officials from coercing social media platforms to moderate their content.

The administration’s “censorship regime” caused, and still causes, “separate and unique injury to our sister states,” Missouri and Louisiana, plaintiffs in the lawsuit, along with five individual social media users, who won the injunction (see 2307050042). Montana AG Austin Knudsen (R) took the lead in filing the brief. Knudsen cited the pressures of meeting the amicus brief’s Friday deadline when he sought a 30-day extension to file the opening brief in his 9th Circuit appeal to vacate the district court’s preliminary injunction that blocks him from enforcing Montana’s statewide TikTok ban (see 2401180002).

The district court and the 5th Circuit found that federal officials “engaged in a years-long campaign to influence the content-moderation decisions of social media platforms,” said the amicus brief. Both courts found that the federal officials applied “unrelenting pressure” to those platforms “to change content-moderation policies to allow easier suppression of disfavored speech,” it said.

This “extensive” censorship campaign “directly injured” Missouri and Louisiana in at least two ways, said the amicus brief. First, their own social-media posts “were censored in response to federal pressure on social media platforms,” it said. Second, the censorship campaign directly interfered with the states’ “sovereign and quasi-sovereign interest in hearing and engaging with their citizens’ views on matters of enormous public importance,” it said. In light of those injuries, Missouri and Louisiana “have Article III standing to vindicate their sovereign and quasi-sovereign interests,” it said.

In the First Amendment “context,” other concerns, such as hindrances to a party’s ability to defend his or her interests or the danger of chilling protected speech, justify a “lessening of prudential limitations” on standing, said the amicus brief. As the 5th Circuit “correctly held,” Missouri and Louisiana have standing “to defend their interest in hearing and engaging with their citizens’ views on issues of public importance,” it said.

The states seek to defend their Article III standing and their sovereign or quasi-sovereign interests, “which strengthens the case for relaxing prudential standing limits in this case,” said the amicus brief. Even if SCOTUS finds that Missouri and Louisiana lack “direct Article III standing,” it should hold that the states have standing “to defend their sovereign and quasi-sovereign interests vis-a-vis the federal government,” it said.

The government petitioners suggest that such suits are barred by the 1923 SCOTUS decision in Massachusetts v. Mellon, said the amicus brief. But SCOTUS should “instead adopt” the 6th Circuit’s "reasoning" in its 2022 decision in Kentucky v. Biden, “and hold that states may sue the federal government to defend their quasi-sovereign interests,” it said. The states urge SCOTUS to affirm the injunction, it said.