‘Official Pressure’ to Stifle Speech Is Unconstitutional, Say 45 House, Senate Republicans

Wielding “threats of intervention,” the executive branch “has engaged in a sustained effort to coerce private parties into censoring speech on matters of public concern,” said House Judiciary Committee Chairman Jim Jordan, R-Ohio, and 44 other House and Senate Republicans in a U.S. Supreme Court amicus brief Friday in Murthy v. Missouri (docket 23-411) in support of the social media injunction that would bar federal government coercion.

On “issue after issue,” the Biden administration has “distorted” the free marketplace of ideas promised by the First Amendment, “bringing the weight of federal authority to bear on any speech it dislikes -- including memes and jokes,” said the brief. Big Tech companies often required “little coercion” to do the administration’s “bidding” on some issues, it said.

Generally eager to please their “ideological allies and overseers in the federal government,” the social media platforms and other private entities “have repeatedly censored accurate speech on important public issues,” said the brief. When the censors were too slow to suppress speech that the “partisans” in the administration disliked, the federal government “prodded them back into action with continual and increasing pressure,” it said.

“Official pressure” to suppress speech violates the First Amendment, said the brief. The First Amendment stands against any governmental effort “to coerce or otherwise burden the free speech of private entities -- even if that action falls short of outright suppression,” it said.

“Censorship-by-proxy is an especially nefarious form of state action,” said the brief. It’s designed to “evade detection, oversight efforts, and public records requests,” it said.

The district court found on July 4 that the White House and numerous federal agencies, pressured and encouraged social-media companies to suppress free speech” (see 230707001), said the brief. The 5th U.S. Circuit Court of Appeals agreed when it affirmed the injunction Oct. 3 with modifications, it said (see 2310040001). “These factual findings must be upheld unless clearly erroneous.”

The district court’s findings are “clearly correct,” said the brief. Even more recent evidence obtained by the House Judiciary Committee and its Weaponization Subcommittee “confirms the conclusions reached” in the district court and the 5th Circuit, it said.

The evidence shows that the Biden administration “has relentlessly pressured private entities -- sometimes in cooperation with other private entities” -- to censor speech that the administration, said the brief. This “official coercion” has undermined the marketplace of ideas “on issues of public importance ranging from COVID to federal elections to Biden family misdeeds,” it said.

Because the Biden administration has repeatedly used government coercion to “stifle public debate,” and the injunction “rightfully halts” that unlawful conduct, the Supreme Court should affirm, said the brief. Oral argument in Murthy v. Missouri is set for March 18.