Federal Social Media Censorship ‘Intolerable’ to First Amendment, GOP AGs Tell Alito

Senior executive branch officials, including senior White House officials, “threaten, pressure, and coerce social-media platforms to silence the core political speech of millions of Americans,” responded the Republican attorneys general of Louisiana and Missouri Wednesday (docket 23A243), urging U.S. Supreme Court Justice Samuel Alito to deny the government’s application for a full stay of the 5th Circuit’s injunction, pending resolution of its forthcoming cert petition (see 2309140041). Alito is circuit judge for the 5th Circuit.

The senior federal officials “pressure” the social media companies “to censor disfavored viewpoints,” and force the companies “to rewrite their policies to ensure that future speech disfavored by the government will also be suppressed,” said the AGs. In so doing, “they impose a nationwide, de facto prior restraint against expressing disfavored viewpoints on some of the greatest debates of our time,” they said.

Federal “interference” fundamentally transforms online discourse, “rendering entire viewpoints virtually unspeakable on social media,” said the AGs. Social media platforms once provided a powerful mechanism for a private citizen to make his or her voice heard, they said, citing the 2017 SCOTUS decision in Packingham v. North Carolina. “Under pressure of federal censorship, that is no longer true -- a situation that is intolerable to the First Amendment,” they said.

SCOTUS “should let the injunction take immediate effect,” said the AGs. The injunction, barring officials from the White House, Office of the Surgeon General, the FBI and the Centers for Disease Control and Prevention, will regain effect at 11:59 p.m. EDT Friday when the current administrative stay expires, unless Alito extends it.

Even if the Supreme Court grants cert, it’s “highly unlikely” the court will reverse the 5th Circuit's ruling that affirmed the injunction, said the AGs. Despite the government’s challenge of the 5th Circuit’s order, it makes “no argument that the district court’s findings are clearly erroneous,” they said.

The lower courts correctly decided federal officials engaged in “unconstitutional coercion,” said the AGs. The government’s claims that finding state action here is “startling” and has “grave implications” are “meritless,” they said. There’s nothing startling about the fact that government coercion or significant encouragement “transforms private action into state action,” they said. That has been “black-letter law” for decades, they said. The startling feature of this case is the government’s “unprecedented disregard for the First Amendment,” they said.

On the coercion issue, the government’s main argument is that the record doesn’t contain “any threatening statements” from the White House, surgeon general’s office or the FBI, said the AGs. “This is incorrect,” they said. The district court “made a long series of specific factual findings of threats of adverse consequences linked to demands for greater censorship,” which the 5th Circuit “reaffirmed,” they said: “None of these findings is clearly erroneous.” The government’s threatening conduct in this case “easily clears the threshold for coercion” set forth in Supreme Court precedent, they said. “In fact, the threats here are more coercive, prolonged, and explicit than in cases where coercion was found,” they said.

The government said even if it coerced social media platforms to remove disfavored viewpoints, that would only violate the platforms’ First Amendment rights, not those of the silenced speakers. said the AGs. But it’s “highly questionable whether platforms have a First Amendment right to silence their users’ speech,” they said. Taking the government’s view for the sake of argument, “if the state coerced a private landlord to refuse to rent to racial minorities, that would only harm the landlord,” they said: “This is obviously wrong -- it would harm the tenants, first and foremost.”

The government presents “a litany of complaints” about the injunction’s broad scope, “but it offers no narrower version of the injunction that would still grant effective relief” to the plaintiffs, said the AGs. The injunction’s scope befits the federal officials’ “sweeping” misconduct, they said. As the district court found, the officials “silenced entire viewpoints in social and political debates,” they said.

The government asks SCOTUS in the alternative to construe its application as a cert petition, grant that petition and set the case for argument, if it doesn’t want to wait for the government to file its formal cert petition Oct. 13. This request is “premature,” because the plaintiff AGs plan to file a petition Friday for panel rehearing in the 5th Circuit, they said. They didn’t say what the rehearing petition will address. Their offices didn't respond Thursday to our email queries seeking comment.