23 Democratic AGs Urge SCOTUS to Vacate ‘Sweeping’ Social Media Injunction

The Democratic attorneys general of 22 states and the District of Columbia urged the U.S. Supreme Court to reverse the 5th Circuit U.S. Court of Appeals’ Oct. 3 decision and vacate the “sweeping” injunction that bars officials from the White House and four federal agencies from conversing with social media platforms executives about content moderation (see 2310040001), said their amicus brief Tuesday (docket 23-411). The injunction is stayed, pending completion of a SCOTUS review.

The injunction “treats virtually any governmental communication aimed at persuading or helping social-media platforms to remove harmful content, protect vulnerable users, or address threats to public safety as inherently coercive and therefore unconstitutional,” said the brief. The result can’t be reconciled with the Supreme Court’s “long-standing precedents.”

The injunction “effectively bars large swaths” of the federal government from communicating with social media companies about content moderation, “no matter how innocuously,” said the brief. Maintaining “open lines of communication” between the government and social media companies about extremist violence, child safety and consumer protection is “mutually beneficial,” furthers the public interest, and “fully comports” with the First Amendment, it said.

In treating information exchange as “inherently coercive,” or as an “improper entanglement,” the 5th Circuit has disabled the government from participating in “an important process of acquiring information and debating policy,” said the brief. It’s a process “that often entails persuasion but not coercion."

By failing to properly distinguish between permissible persuasion and impermissible coercion, the circuit court “has made a critical error,” the brief said. In purporting to protect First Amendment values, the court “significantly restricted the federal government’s essential role in participating in the marketplace of ideas,” it said. “This will impoverish, rather than protect, robust debate on matters of vital public importance.”

In concluding that the government coerced or significantly encouraged social media companies' content-moderation decisions, the 5th Circuit “erroneously focused on the mere existence of background law-enforcement authority of certain federal agencies over the social media companies,” said the brief. But SCOTUS precedents make clear that the mere existence of government authority doesn’t amount to coercion “when the government simply recommends or attempts to persuade private actors to undertake a particular course of action,” it said.

The circuit court also erred in applying a novel “significant encouragement” standard to conclude that the government’s issuance of “nonbinding guidance” to social media companies “transformed the companies’ content-moderation decisions into actions attributable to the federal government,” said the brief. The court then “compounded its error” by focusing on the fact that social media companies sometimes found the guidance persuasive or useful in making their content moderation decisions, it said. Treating such purported entanglement as the basis for attributing private decisions to the government “lacks legal support.”