'Fate' of US Free Speech Rests on What SCOTUS Does With Social Media Injunction: RFK Jr.

Though litigants “exaggerate,” it may “actually be true that the fate of the freedom of speech in America depends” on what the U.S. Supreme Court does with the preliminary injunction barring federal officials from coercing social media platforms to moderate their content, said the Children’s Health Defense and its founder, Robert F. Kennedy Jr. They filed an amicus brief Wednesday (docket 23A243) in opposition to the government’s application for a full stay of the injunction pending the disposition of its appeal (see 2309140041).

As the “documentary record” in the case shows, the federal government has been waging “a systematic, clandestine, and highly effective campaign” for several years to get the social media companies to do what the government itself can’t -- “censor protected speech on the basis of its content and viewpoint,” said the brief. CHD and Kennedy are plaintiffs in the Western District of Louisiana case that was consolidated with the original lawsuit filed by the Republican attorneys general of Louisiana and Missouri that spurred the July 4 injunction against federal officials.

The injunction is on an administrative stay until 11:59 p.m. EDT Friday. Wednesday was the deadline for The Louisiana and Missouri AGs to respond to the goverment's application for a full stay.

There has emerged “an uncharted First Amendment constellation” on the one hand, and on the other “a concerted governmental campaign to induce censorship” in online forums, threatening to turn them into the most massive system of censorship in U.S. history, said the brief. “The burden of deciding what to do with this new First Amendment constellation rests on the shoulders” of the Supreme Court, it said.

Section 230 of the Communications Decency Act “expressly immunizes social media companies from state law liability” if they censor constitutionally protected speech that the companies deem objectionable, said the brief. The federal government “is making plain to social media companies its very strong preference that certain government-identified speech and speakers be suppressed,” it said.

But this case “includes yet a third element that makes a finding of state action even more imperative,” said the brief. As the district court found, as the 5th Circuit affirmed and as the documentary record establishes, the federal government “has applied powerful, relentless pressure on social media companies to censor government-disfavored speech, it said. “Pages and pages of briefing in this case will argue about whether this pressure amounted to ‘coercion,’ and surely much of it did,” it said.