8 Democratic Secretaries of State Urge SCOTUS to Vacate Social Media Injunction

The secretaries of state of Arizona, Colorado, Connecticut, Maine, Minnesota, New Mexico, Oregon and Vermont are urging the U.S. Supreme Court to reverse the 5th U.S. Circuit Appeals Court’s Oct. 3 decision and vacate the injunction that bars officials from the White House and four federal agencies from conversing with social media companies about their content moderation policies (see 2310040001). All Democrats, the chief election officers in their states filed the Dec. 26 amicus brief in Murthy v. Missouri (docket 23-411).

SCOTUS should craft a rule of law that doesn’t “unduly suppress constitutional speech by state election officials,” said the brief. In recent elections, state election offices have “communicated directly” with the large social media companies, notifying them “of false, and sometimes illegal, speech” on their platforms, it said.

Those communications were “non-coercive, productive, and consistent with the First Amendment,” said the brief. But even with the 5th Circuit’s injunction stayed, pending the Supreme Court’s final decision in Murthy, the social media platforms “have recently changed their attitudes to receiving any government speech, even speech protected by the First Amendment rights of both government speaker and private listener,” it said.

The “free exchange of ideas” between state officials and platforms was common during the election seasons of 2020 and 2022, said the brief. Those conversations gave platform executives accurate election information, it said. As such, the platforms were free to do as they wished with that information, it said. That’s how the First Amendment “ought to work,” it added.

But for the coming election season, “that dialogue has essentially ended, likely influenced by fears of legal liability for communicating too closely with the government,” said the brief. Forcing social media platforms to block “all direct contact with government officials,” as the 5th Circuit’s injunction does, “will squelch uncontroversial, commonplace communications,” it said: “That, in turn, will increase the risk that dangerous, and even illegal, falsehoods about elections and voting will spread unchecked.”

Allowing platform executives to hear directly from state election officials “is an important tool to combat the spread of damaging, destructive, and dangerous false information” about the "mechanics and processes" of American elections, said the brief. Whatever decision SCOTUS reaches in Murthy, “it should make clear that the First Amendment permits state election officials to quickly notify platforms of false election-related speech,” it said.

In the aftermath of the 5th Circuit’s decision affirming the social media injunction against federal officials, “these valuable, constitutional lines of communication have frozen out,” said the brief. For example, Meta has said “there are no current plans to facilitate direct communications between state officials and the platforms,” it said. The same is true at X, formerly Twitter, it said. Moreover, X personnel who previously corresponded with state election officials when X was Twitter “are no longer at the company and have not been replaced,” it said.

State officials who have reached out in recent months to email addresses and contacts at the big social media companies haven’t heard back, said the brief. There’s “is no reason to think any of this will change soon,” absent SCOTUS intervention, it said.

This situation is “counterproductive and risky,” said the brief. It’s like a local TV station that’s “committed to accurate coverage of natural disasters,” and then “severing all direct contact with the National Hurricane Center,” it said. Without these open lines of communication, which violate “no constitutional provision,” state election officials “still have options, but their work is harder and their interventions less effective,” it said.

The question presented in Murthy is how to determine when contact between the government and social media platforms “crosses the line between talking and coercing,” said the brief. In its final decision, SCOTUS should “prioritize clarity,” it said. “The mere threat of litigation may deter government officials from speaking to social-media platforms in constitutionally unproblematic ways,” it said. Agencies that “merely flag” social media posts with “no strings attached” shouldn’t be subject to SCOTUS-developed rules, it said.

Though the individual plaintiffs in Murthy are speakers, “the speech interests of at least two other parties are implicated -- the platforms and the states,” said the brief. The mere threat of litigation “may well deter” state officials from speaking, and a vague SCOTUS rule “may deter the platforms from responding to government inquiries, as is their uncontested First Amendment right,” it said.

SCOTUS should recognize that “a too-strict prohibition can effectively work as an unconstitutional prior restraint on speech,” said the brief. Any rule that would disrupt “valid lines of communication between state election officials and platforms that wish to receive them can operate as an unconstitutional restraint,” it said.