Government Transformed Platforms Into ‘State Actors,’ Says Louder With Crowder Brief

Federal officials “engaged in a far-reaching unconstitutional censorship campaign orchestrated to circumvent the First Amendment” by pressuring social media platforms to remove content that the federal government finds “objectionable,” said the right-leaning internet show Louder With Crowder in a U.S. Supreme Court amicus brief Wednesday in Murthy v. Missouri (docket 23-411) in support of the injunction that bars the officials from coercing the platforms to moderate their content.

SCOTUS has fully stayed the injunction pending its resolution of Murthy v. Missouri (see 2310230003). Oral argument in the case is scheduled for March 18 (see 2401290058).

Social media platforms "are today’s public square" and are thus subject to constitutional “constraints,” said the brief. The “undeniable influence” of the platforms is bolstered by the government's “ever-increasing participation” on those platforms, it said. By recognizing the “distinctive role” the platforms play in “shaping public discourse,” SCOTUS can “safeguard the resilience and adaptability of First Amendment principles in the face of contemporary communication challenges,” it said.

The federal government violated the First Amendment by coercing social media platforms to violate Section 230 of the Communications Decency Act, said the brief. Though the government can’t encourage private individuals to achieve what is constitutionally prohibited, the current case illustrates the government’s use of “non-governmental corporations to bypass” constitutional restrictions by exploiting Section 230's immunity clause and violating the Constitution’s separation of powers, it said.

The federal government, “through coercion and joint participation,” transformed the social media platforms into “state actors,” said the brief. First, the government coerced the platforms to censor lawful speech “under threat of regulatory retaliation,” it said. The platforms then became state actors through their joint participation in the government’s “censorship campaign,” it said. This resulted in the platforms and the government becoming “so pervasively entwined” so as to transform platforms into an arm of the federal government, it said.

The platforms’ “algorithmic censorship” creates an environment “ripe for the content moderation abuse” that led to the federal government running “afoul of the First Amendment and disrupting the balance Congress sought with Section 230,” said the brief. The use of algorithms to moderate content “raises problems in and of itself,” it said.

But the issues inherent with algorithmic censorship are compounded by the “surreptitious nature of these algorithms, shielding them from public scrutiny and review,” said the brief. The platforms’ algorithmic censorship, as implemented at the direction or coercion of the federal government in this matter, “constitutes a prior restraint on free speech,” it said.