Federal Censorship 'Overwhelmingly Targets' Domestic, Not Foreign Speech, Say AGs

“Suppose that a federal national security agency teamed up with private research institutions" to establish a "mass-surveillance and mass-censorship program," posited Monday's reply memorandum (docket 3:22-cv-01213) from the Republican attorneys general of Louisiana and Missouri in support of their motion for a preliminary injunction against federal officials and agencies. That's a hypothetical that's "directly analogous to the facts in this case," said the filing in U.S. District Court for Western Louisiana in Monroe.

That the hypothetical program is colluding with social media to suppress right-leaning content is "not hypothetical at all" but a description of the federal Election Integrity Partnership (EIP) and Virality Project, said the memorandum. The First Amendment lawsuit from Louisiana's Jeff Landry and Missouri's Andrew Bailey alleges 67 government agencies and officials colluded with Big Tech to censor social media information about the 2016 presidential election and COVID-19 health information (see 2303080002). The injunction they seek would bar the defendants from “inducing social-media companies to censor particular contents or to adopt or enforce speech-restrictive content-moderation policies" (see 2305180004).

Responding to defendants’ statement of facts in their opposition to plaintiffs’ motion for preliminary injunction (see 2305040030), the AGs said defendants claim their censorship activities were designed to prevent “hostile foreign assaults on critical election infrastructure.” Evidence shows “federal censorship overwhelmingly targets domestic speech by American citizens, not ‘foreign disinformation,’" said the memorandum. It quoted an EIP report saying “supposed election ‘misinformation’ was 'pushed by authentic, domestic actors,’” and a Virality Project finding that for “supposed” COVID-19 misinformation, foreign actors’ reach “appeared to be far less than that of domestic actors.’”

Defendants made a “key admission” when they said “various agencies and officials spoke publicly and privately with social media companies to … call the companies’ attention to misinformation spreading on their platforms,” said the memorandum, saying the sentence "admits that Defendants are the but-for cause of the censorship." Until defendants "flagged the disfavored content, the platforms did not censor it,” it said.

On defendants’ claim that each federal agency should be treated as acting independently from the others, the AGs said, “On Defendants’ view, 'it is just a stunning coincidence that dozens of federal agencies and officials, all acting in isolation, simultaneously decided to pressure social-media platforms to remove disfavored content.'” Evidence shows “extensive coordination” among defendants on social media censorship, they said, citing relationships between the White House and Office of the Surgeon General, Centers for Disease Control (CDC) and Prevention, and Census Bureau.

Responding to defendants’ claim that much of the alleged conduct occurred in the previous administration, the AGs said, “Federal social-media censorship violates the First Amendment regardless of which Administration or political party does it.” They said “the evidence demonstrates an aggressive acceleration of federal social-media censorship activities, and the direct involvement of the White House, once the Biden Administration took office,” citing what they called campaigns by Anthony Fauci, chief medical adviser to the president, “to discredit the lab-leak theory,” the Cybersecurity and Infrastructure Agency’s launching of the EIP and “CISA’s campaign to censor the Hunter Biden laptop story.”

On defendants’ call for reform of Section 230 of the Communications Decency Act, and their citing of longtime bipartisan concerns about Section 230, the AGs said that argument “misses the point.” Instead, “what violates the First Amendment is to threaten Section 230 reform as a cudgel to pressure platforms to censor disfavored speech,” they said, claiming that’s what defendants “and their political allies have done.”

Defendants’ argument that a preliminary injunction could affect the CDC’s ability to issue a statement on a public health issue is an “attempt to manufacture concerns that do not exist,” said the AGs. The proposed injunction would prevent defendants from acting to “demand, urge, encourage, pressure, coerce, deceive, collude with, or otherwise induce” social media platforms to censor speech, said the memorandum.

Plaintiffs argued the injunction is “overbroad” because it would prevent them from seeking removal of social media content on criminal activity, said the memorandum. That could include removing depictions of child sexual abuse or recruitment speech by terrorist organizations. Such content isn't protected by the First Amendment and thus wouldn't violate the proposed injunction, the AGs said, adding the court could insert a clarifying phrase in the injunction that says “except for content that itself constitutes criminal activity not protected by the First Amendment.”