'Sweeping and Unprecedented' Social Media Injunction Should be Vacated: DOJ

The Republican attorneys general of Missouri and Louisiana, plus five individual social media users, are asking the U.S. Supreme Court to “rewrite” the constitutional boundary between the public and private sectors by affirming the 5th U.S. Circuit Appeals Court’s “sweeping and unprecedented” social media injunction against Biden administration officials (see 2309110001), said DOJ’s reply brief Monday in Murthy v. Missouri (docket 23-411). Oral argument is March 18.

The injunction to bar the officials from coercing social media platforms to moderate their content is itself “based on sweeping and unprecedented understandings of Article III standing, the state-action doctrine, and the proper scope of equitable relief,” said the brief. The AGs and individual users “insist that any person can establish standing to challenge any action affecting any speech by any third party merely by asserting a desire to hear it,” it said.

But that’s a proposition “that would effectively abolish Article III’s limits in free-speech cases,” said the brief. The AGs “seek to transform private social-media platforms’ editorial choices into state action subject to the First Amendment,” it said.

The AGs don’t deny that the injunction installs U.S. District Judge Terry Doughty for Western Louisiana in Monroe, who imposed the injunction July 4 (see 2307070011), as the “overseer” of the executive branch’s communications with and about the platforms, said the brief. That will have the effect of “muzzling senior officials’ speech to the public" and exposing thousands of employees to contempt should the court conclude that their statements run afoul of the 5th Circuit’s “novel and vague standards,” it said.

As they did at the stay stage, the AGs try to defend that “startling result” by invoking the district court’s factual findings, which they assert are “unrebutted,” to substantiate their allegations of “widespread government censorship,” said the brief. But the government “vigorously disputed the district court’s findings,” and the 5th Circuit “declined to rely on many of them,” presumably because they’re “unsupported or demonstrably wrong,” it said.

The AGs’ presentation to the Supreme Court “paints a profoundly distorted picture by pervasively relying on those debunked findings,” said the brief. The AGs still haven’t identified “any instance in which any government official sought to coerce a platform’s editorial decisions with a threat of adverse government action,” it said.

Nor can the AGs point to any evidence that the government “ever imposed any sanction when the platforms declined to moderate content the government had flagged -- as routinely occurred,” said the brief. They instead principally argue that government officials “transformed private platforms into state actors subject to First Amendment constraints merely by speaking to the public on matters of public concern or seeking to influence or inform the platforms’ editorial decisions,” it said. SCOTUS should reject “that radical expansion of the state-action doctrine,” it said.