Government’s Pandemic Response Was ‘Anathema’ to First Amendment, Says Liberty Counsel

The COVID-19 pandemic saw a rise in “totalitarian violations of constitutional rights” under the “guise” of public health, said Liberty Counsel’s U.S. Supreme Court amicus brief Tuesday in Murthy v. Missouri (docket 23-411). The nonprofit legal organization's brief supports the injunction barring White House officials and four federal agencies from coercing social media platforms to moderate their content.

The Biden administration could have safeguarded Americans’ First Amendment right “to freely discuss the government’s response to the pandemic in the marketplace of ideas,” said the brief. Instead, it engaged “in a concerted effort to shut down debate,” it said. Moreover, the administration stifled doctors who questioned the “prevailing orthodoxy” of mandatory mRNA vaccines and threatened social media companies that didn’t censor content that the White House disfavored, it said.

The administration’s “dystopian” response was “anathema” to the First Amendment and at odds with SCOTUS jurisprudence, said the brief. Murthy v. Missouri presents an opportunity for the high court to emphasize the First Amendment’s role as a “model safeguard” against government censorship, especially during national emergencies and times of social unrest, it said.

The administration’s “crusade” to censor protected expression isn’t “an isolated campaign,” the brief added. It’s “emblematic” of a broader global trend aiming to suppress speech authorities deem to be misinformation and conspiracy theories, it said. Triggered by the COVID-19 pandemic, governments and corporate powers worldwide “carried out censorship campaigns against alternative opinions -- even from expert epidemiologists -- that criticized the official response to the pandemic.”

The conduct draws a “chilling parallel” with historical instances of government censorship, said the brief. Such “government-patrolled speech,” as carried out by regimes like Nazi Germany, “invariably leads to severe violations of human rights,” it said.

The 5th U.S. Circuit Court of Appeals correctly found that the administration’s pressuring of social media companies to censor disfavored speech, and the resulting suppression, “constitutes state action that violates the First Amendment,” said the brief. The “foundational principle” of the First Amendment prohibits government “punishment” of speech based on its content or impact, it said.

Any collaboration resulting in the censorship of disfavored speech “constitutes unconstitutional viewpoint discrimination,” said the brief. Even if the White House didn’t directly engage in censorship, “the palpable chilling effect resulting from its pressure campaign raises serious concerns,” it said. It compels individuals “to self-censor out of fear of government reprisal, account deactivation, and doxing,” it said.

The U.S. is a global leader in democracy and human rights, and the First Amendment is the world’s “exemplar” and preeminent safeguard against government censorship, said the brief. It’s “imperative” that SCOTUS “reaffirm the need for a robust marketplace of ideas, free from government coercion,” it said. In times of “heightened intolerance,” the First Amendment must be exercised to prevent governmental attempts to “systematically stifle dissent,” it added. SCOTUS should uphold the First Amendment “as a vanguard against government censorship” and accordingly affirm the injunction, it said.