RFK Jr. Asks SCOTUS for ‘Slightly Narrower’ Social Media Injunction on Biden Officials

It may sound like “litigation hyperbole,” but the fate of freedom of speech in America “may actually depend on this case,” the brief said. Two recent developments combined to create “a peril to free speech unprecedented in our history,” it said.

One is the rise of “behemoth” social media platforms, owned by private companies exercising content-based control “over all that is said,” said the brief. The other is the federal government's “concerted, secret, highly successful campaign” to induce these platforms to censor protected speech, “including wholly accurate information and core political opinion” critical of Biden administration policy, it said. The Western District of Louisiana and the 5th U.S. Circuit Court of Appeals “copiously documented” this campaign, it noted.

If SCOTUS decides this case “unwisely,” it risks approving what some believe is the most massive system of censorship in U.S. history, said the brief. That encompasses “a brave new world” where the government “can and will censor dissent and dissenters by proxy, controlling what hundreds of millions of Americans can say, see and hear every day,” it said.

Most of the briefing in this case, plus the 5th Circuit opinion under review, assumes that First Amendment claims turn on whether government petitioners “have shown state action,” said the brief. But that premise is incorrect, it added. As a matter of “precedent and principle,” the government’s censorship campaign “is unconstitutional regardless of whether it crosses the state action tripwire.”

If this were a First Amendment suit against the platforms, “then the state action inquiry would properly govern,” said the brief. “But this is an injunctive suit against governmental officers,” it said. As SCOTUS held in its 1973 decision in Norwood v. Harrison, it’s “axiomatic” that the state may not induce, encourage or promote private persons to accomplish what it’s constitutionally forbidden to accomplish, it said.

That wasn’t a state action case, said the brief. The principle of Norwood “controls regardless of whether any of the familiar state action tests,” including coercion and joint activity, are satisfied, it said. There can be no doubt that the government “has done here exactly what Norwood proscribes, it said. It has deliberately sought to induce, encourage and promote social media platforms to censor core political speech that the government “could not constitutionally censor on its own.”

If SCOTUS reaches the state action issue, coercion and joint activity “need not be the sole focus,” said the brief. Section 230 of the Communications Decency Act, immunizing social media platforms against liability if they censor constitutionally protected speech, “should play a decisive role as well,” it said.

A "slightly narrower" injunction "would obviate certain objections” that government petitioners raised, said the brief. In his preliminary injunction motion in the case that U.S. District Judge Terry Doughty consolidated with this case, Kennedy sought an injunction barring the government from privately communicating with social media companies to encourage censorship of protected speech, it said.

Such an injunction would as a matter of law “not impinge one iota” on the government’s speech rights, said the brief. It would leave federal officials “free to publicly express any opinions they wished, and would be narrowly tailored to the constitutional violation at issue here,” it said. Kennedy’s injunction motion remains pending in the district court (see 2312150026).