Review of Amicus Briefs Filed in Murthy v. Missouri Before the Supreme Court

Related Reading:

• Backgrounder: Supreme Court to Hear Oral Argument in Murthy v. Missouri
• First Amendment Defenders and the Supreme Court Should Reject the Jawboning Bogeyman

On May 5, 2022, Missouri Attorney General Andrew Bailey filed a lawsuit (Missouri v. Biden) in the US District Court for the Western District of Louisiana, accusing the Biden administration, federal agencies, and top health officials of colluding with social media companies. The suit alleges government officials engaged in a “coordinated campaign” throughout the COVID pandemic to remove disfavored content and suppress the expression of disfavored views in violation of protected speech under the First Amendment of the United States Constitution.

The case primarily concerns “jawboning,” or informal government efforts to pressure private social media companies into limiting or removing speech on their platforms. After a winding series of appeals and preliminary injunctions in the Fifth Circuit, the US Supreme Court agreed to take up the case, now Murthy v. Missouri, in its 2023-24 term. The record is marred by questions over the characterization and veracity of the underlying evidence.

The three questions before the Court are the following:

1. Whether the respondents in the case – the states of Missouri and Louisiana and five individual plaintiffs – have Article III standing;
2. Whether the US government’s conduct transformed private social media companies’ content moderation decisions into state action in violation of the respondents’ First Amendment rights
3. Whether the terms and breadth of a preliminary injunction issued by a lower court were appropriate.

Briefs were submitted to the Court by the US Solicitor General (on behalf of the Petitioner, Surgeon General Vivek H. Murthy), the respective States, and other parties either in favor of Murthy or the states or neither party. To help Tech Policy Press readers better understand what arguments are being made by the amici, we put together short summaries. These summaries are intended to offer the broad contours of each brief, and thus do not always contain every argument contained within them. If the reader wants a complete version of any one brief, the link to the document is provided in the text.

Amicus brief summaries in support of Petitioners - Vivek H. Murthy, Surgeon General, et al.

American Academy Of Pediatrics, American Medical Association, American Academy of Family Physicians, American College of Physicians, and American Geriatrics Society

• The amici are a coalition of associations representing hundreds of thousands of medical professionals. They only seek to address the legal issue of whether the government has a “compelling interest” in combating vaccine misinformation. They take no position on allegations that the government exercised coercive power or whether the Fifth Circuit’s “entanglement” standard is legally correct or satisfied.
• The coalition argues that FDA-approved vaccinations save lives, reduce mortality rates and the prevalence of deadly diseases, reduce the burden on the medical system, and are safe. Vaccine misinformation – some of which is the subject of communications in the case – has led to a decline in vaccine uptake, interfering with vaccinations’ “lifesaving role in a well-functioning public health system.” Thus, amici argues that the government has a “compelling interest” in combating vaccine misinformation.

The Lawyers’ Committee for Civil Rights Under Law, Common Cause, and Leadership Conference On Civil And Human Rights

• Amici are leading members of Election Protection, a nationwide coalition that works to ensure voters can exercise their right to vote. They argue that information sharing between government agencies, voting rights organizations, and social media companies is crucial for guarding against online disinformation threats, particularly for vulnerable communities.
• The brief states that the Fifth Circuit's modified injunction, which prohibits certain government agencies from coercing or significantly encouraging social media companies to moderate content on their platforms, uses overbroad and vague language that will likely cause government officials to be uncertain about what actions are allowed. This may reduce interactions and endanger Americans’ right to vote.
• Amici urge the Court to vacate the injunction, decline to reinstate the district court injunction, and dismiss the case.

Secretaries of State of Arizona, Colorado, Connecticut, Maine, Minnesota, New Mexico, Oregon, And Vermont

• The eight secretaries of state included in the brief are officials who administer elections and are “at the forefront of efforts to counteract election misinformation, including by engaging directly with social media companies to mitigate the impact of disinformation and promote the dissemination of accurate electoral information.” They worry the outcome of this case could chill state officials’ future efforts to disseminate accurate information.
• The amici claim that past “uncontroversial, commonplace” communications about election misinformation and sometimes illegal speech between election representatives and employees at large social media platforms from 2020 to 2022 were non-coercive, productive, and consistent with the First Amendment. They also state that platforms were free to do what they wished with this information.
• Social media companies’ changing attitudes to engaging with government speech and their fear of liabilities have mostly ended all communications ahead of the coming election season, increasing the risk that dangerous and illegal falsehoods about elections and voting will spread unchecked. They urge the Court to reach a decision that makes clear that the First Amendment “permits state election officials to quickly notify platforms of false election-related speech.”

Stanford University

• Stanford was not named as a defendant in Murthy v. Missouri, but assertions of its researchers' conduct at the Stanford Internet Observatory (SIO), which studies abuse on social media, are featured prominently throughout the underlying complaint and district court’s preliminary injunction decision. The plaintiffs allege that SIO personnel conspired with federal officials to censor speech on social media platforms, and as a result, the district court enjoined the government from communicating with the SIO, the Election Integrity Partnership, and the Virality Project. The Fifth Circuit later “correctly vacated” this provision.
• The brief states that the Fifth Circuit’s decision to transform private conduct by social media platforms into state action merely because it communicates with the government threatens the government’s ability to speak on matters of public concern.
• Stanford argues that this “limitless state-action theory” would similarly subject private researchers and universities to constitutional constraints for speaking to the government about their research, chilling research, and policy discussions. It also factually misrepresents Stanford and its researchers’ First Amendment-protected work. Stanford asks the Court to decline any state-action theory that turns a private research institution's work into state action.

United States Senator Mark Warner (D-VA)

• Sen. Warner, Chairman of the Senate Intelligence Committee, states that “foreign malign influence campaigns” are a national security issue. Actors like Russia, Iran, China, and Cuba used popular social media platforms like Facebook, Instagram, Twitter, and YouTube during the 2016 elections to sow discord and heighten societal tensions in the US. He believes the best way to combat these campaigns is through “threat sharing,” or public and private sector cooperation that involves data and information sharing.
• According to the brief, the injunction will leave the US vulnerable to attack, and no alternative injunction-compliant methods of communicating with social media companies are effective.
• Sen. Warner urges the court to “reverse the judgment of the Fifth Circuit in relevant part and direct that the preliminary injunction be vacated in its entirety.”

Amicus brief summaries in support of respondents - Missouri et al.

Advancing American Freedom, et al.

• Advancing American Freedom (AAF) is “a nonprofit organization that promotes and defends policies that elevate traditional American values…and has an interest in the continued freedom of organizations and individuals to advocate for their beliefs, whether political, social, or otherwise, without fear of government censorship.” AAF is joined in this brief by many other “individuals and organizations…which are concerned about government overreach that infringes on [free speech] rights.”
• Together, they argue that “[t]he issue at the heart of this case is whether the government can circumvent its constitutional limitations by asking a private party to do what the government could not” and that “there is no common good exception to the Constitution’s limitations on government power.” Amici writes that the Fifth Circuit’s state action doctrine analysis “is insufficiently protective of individual rights to the extent that the government can succeed in its attempt to harm the rights of the people by colluding with a private party.” For example, the state action doctrine could allow the government to censor with the help of a willing private actor that controls the distribution of speech.
• Amici thus asks the Court to define a test like those used by ten of the eleven circuit courts in Fourth Amendment cases “that protects [First Amendment] rights against infringement by a private party where that infringement was instigated by the government, with or without coercion.” This test “could include the degree to which the government speech was public, was directed at a particular private party, and was about a specific speaker or group of speakers” instead of requiring evidence of coercion.

American Free Enterprise Chamber of Commerce

• The American Free Enterprise Chamber of Commerce (AmFree) is a 501(c)(6) organization that represents entrepreneurs and businesses across all sectors. AmFree’s members are interested in preserving free markets and innovation. The brief argues that the First Amendment prohibits government censorship of speech based on its content, which traditionally involved direct government actions to suppress speech.
• With the rise of social media, the government has adapted by indirectly pressuring private platforms to censor speech, effectively circumventing traditional constitutional limitations. Despite complexities in determining state action, the essence of the violation lies in the government's attempt to induce or coerce private entities into suppressing protected speech, which is unconstitutional regardless of formal state action criteria.
• AmFree argues that the federal government has pressured social media companies to censor speech labeled as "disinformation," targeting specific viewpoints that contradict government policies. Examples it provides include the “censorship” of content related to COVID-19 origin theories, climate change, and energy policies, where government officials urged platforms to suppress dissenting opinions. The government's broadened definition of "disinformation" encompasses opinions on public policy, not just false information, which threatens First Amendment principles.

America’s Frontline Doctors and Dr. Simone Gold, M.D., J.D.

• The Free Speech Foundation, d/b/a America’s Frontline Doctors (AFLDS), is a “not-for-profit organization of hundreds of member physicians…representing a range of medical disciplines.” The trial court’s injunction opinion in this case specifically mentioned members of this organization as being targeted as the so-called ‘Disinformation Dozen' whose content related to COVID-19 treatments was removed by social media platforms.
• Amici contend that the “censorship of truthful and accurate medical information in the midst of a public health crisis causes much harm, and can be literally fatal to thousands of Americans.” Further, they note that “even false information is protected free speech, excluding only the well recognized exceptions to free speech,” and that “[p]atients enjoy the right to be fully informed with all of the information freely available when making their deeply personal medical choices.”
• The brief provides examples of physicians and other commentators whose posts were removed by social media platforms. It also attempts to establish that data supports their claims that mRNA vaccines are dangerous, alternative COVID-19 treatments are effective, and masks are ineffective. (These claims are not backed by scientific consensus- Ed.) It also mentions the “sovereign interests” of the respondent states and the free speech rights of those states’ citizens. Finally, amici alleges that “this government is now funding artificial intelligence viewpoint censorship programs, so that the unconstitutional and illegal suppression of disfavored viewpoints can be automated.”

Americans for Prosperity Foundation

• Americans for Prosperity Foundation (AFPF) is a “501(c)(3) nonprofit organization committed to educating and empowering Americans to address the most important issues facing our country, including civil liberties and constitutionally limited government.” It frames the issue as one of the government using a private intermediary to censor speech. It asks the Court to find that the controlling case in this matter is Bantam Books, “which held that the successful efforts of a Rhode Island commission to remove books with disfavored content from bookstores violated the publishers’ First Amendment rights.” AFPF does not explicitly analogize platforms to publishers, but implies this analogy in its emphasis and explanation of Bantam Books.
• The brief alleges that the facts in this case depict a “wide-spread and often coordinated effort” by the government over multiple years and subject areas. It illustrates this point by noting the wide range of government officials enjoined as defendants in the case and alleges that this results from a growing administrative state. AFPF writes that “[i]t is well-established that the government may not do indirectly what it is constitutionally forbidden to do directly” and that “government intent simply does not matter.”
• Further, it emphasizes that the Fifth Circuit did not need to involve the state actor doctrine in its reasoning. State actor analysis, they contend, is relevant when either the defendant is a private entity or the plaintiff “seeks to hold the State liable for the actions of private parties” – neither of which is at play here. This “unnecessary application of state actor doctrine opens the door to indirect government censorship” by shifting “focus away from the government official’s action to the mental state of an intermediary.”

America's Future, et al.

• The filers, including America's Future, Free Speech Coalition, and other nonprofit organizations dedicated to civil liberties and constitutional rights, filed the brief to support the respondents. Their interest in the case revolves around opposing government censorship and preserving the First Amendment rights within the context of social media and digital communication. They argue that the federal government's campaign to partner with Big Tech companies to censor and suppress speech about significant topics constitutes a large-scale "Censorship Enterprise."
• The filers argue that respondents have Article III standing due to the direct and traceable harm caused by government-induced censorship, affecting their freedom of speech and right to receive information. They maintain that the government's conduct transformed private social media companies' content-moderation decisions into state action, violating respondents' First Amendment rights.
• The brief supports the suitability of the preliminary injunction issued by the Fifth Circuit, arguing it is necessary to prevent further First Amendment infringements. It emphasizes the need for the Supreme Court to recognize and halt the government's indirect censorship efforts through social media platforms, highlighting the broader implications for free speech and public debate in a democratic society.
• In summary, the Amicus Brief by America's Future and other organizations calls for the Supreme Court to uphold the decisions of lower courts, stressing the critical importance of protecting First Amendment rights against government efforts to coerce social media platforms into censoring content, thereby safeguarding the principles of free speech and public discourse.

Association of American Physicians and Surgeons

• The Association of American Physicians and Surgeons (“AAPS”) is a “national association of physicians, founded in 1943…dedicated to protecting the patient-physician relationship.” AAPS publishes an online medical journal “which contains the very type of medical opinions and hypotheses that the Biden Administration and its allies have sought to censor.” The brief mainly outlines arguments against COVID-19 vaccination policies and in support of vaccine criticism to cast the Biden Administration’s actions in this vein as censorship, not an effort to combat misinformation. Amici writes, “[t]he proper antidote to alleged false information is a stronger right to free speech, not a weaker one.”
• AAPS disagrees with the amicus brief written by the American Medical Association (AMA) in support of the petitioners, arguing that “criticism of vaccination is warranted in response to the exaggerations of benefits of vaccination and the denial of its proven harms.” It believes that the “government flagrantly ignore[d] safety issues” with the COVID-19 vaccine and cites vaccine studies that it believes the administration should have considered in its policies. It also takes issue with language used by the Biden Administration in its communications with social media platforms, such as “vaccine hesitancy.”
• Finally, AAPS invokes the state actor doctrine in relation to Stanford University’s Virality Project, arguing that the government used Stanford as an intermediary and that “[t]he First Amendment prohibits government from doing indirectly what it cannot do directly.”

Atlantic Legal Foundation

• The Atlantic Legal Foundation (ALF) is a “national, nonprofit, nonpartisan, public interest law firm” funded by mostly conservative and corporate donors. The brief’s main argument is that the federal government should not be allowed to violate the First Amendment to fight misinformation by suppressing free speech that criticizes or questions the scientific bases for its nationwide public health policies and messaging. It says Executive Branch officials exerted pressure on social media platforms to suppress content related to COVID-19, leading to the removal of flagged posts and the deplatforming of users who aligned with the government's preferred viewpoints.
• The brief alleges that the White House, CDC, and Surgeon General officials engaged in a concerted effort to influence social media moderation policies, including requesting the removal of flagged content, providing direct guidance on content moderation, and publicly criticizing and threatening platforms for non-compliance. This resulted in censorship and self-censorship among individuals.
• The brief argues that suppressing public debate about medical or other scientific matters obstructs “sound science, implying “organized investigations and observations conducted by qualified personnel using documented methods and leading to verifiable results and conclusions.” The suppression of this debate damages the iterative nature of scientific progress, hindering the advancement of knowledge and the self-correcting process inherent in the scientific method. Censoring dissenting viewpoints on COVID-19 mitigation policies represses public discourse, prevents scrutiny of evolving scientific understanding, and damages trust in public health messaging. This impedes informed decision-making and the democratic principle of individual autonomy in healthcare choices.

Buckeye Institute

• The Buckeye Institute, an independent research and educational institution focused on advancing free-market public policy, filed its brief to address concerns about what it says is Executive branch censorship in violation of the First Amendment. The Institute’s interest stems from its mission to support the First Amendment rights of individuals and the free press, highlighting the case's implications for free speech and public debate. The brief argues that the Executive branch's actions, which it characterizes as "jawboning" or coercing private social media companies to censor speech, constitute state action that infringes upon First Amendment rights.
• The brief supports respondents' Article III standing, given the direct impact of government-induced censorship on free speech and public discourse. It argues that the government's coercive actions have effectively transformed private content moderation into state action, violating First Amendment rights.
• The Buckeye Institute urges the Supreme Court to recognize the gravity of executive branch efforts to censor speech through social media platforms and affirm free speech protections against such indirect censorship tactics. The brief highlights the need for judicial intervention to prevent the government from engaging in censorship by proxy, which it views as a significant threat to the First Amendment.

Center for American Liberty

• The Center of American Liberty (CAL) is a nonprofit law firm dedicated to civil liberties. The CAL argues that the government crosses the line of freedom of speech when it “significantly encourages” a social media platform to censor users. In that situation, “the government is not merely engaging in a public explication of its position or values but attempting to silence private voices or opinions.”
• The brief argues that this case reflects a growing trend of government actors using the pretext of “government speech” as an excuse to regulate and censor private expression online. The Center says the Government Speech Doctrine allows the government to express its views and advocate for its policies without being subject to First Amendment scrutiny. However, the doctrine does not permit the government to regulate private speech, which it cannot regulate directly or indirectly. If government speech is intended to silence or suppress private speech, it constitutes regulation and triggers First Amendment scrutiny.
• Government speech can transform into government regulation when the government significantly encourages a private actor to engage in censorship or regulatory actions. Significant encouragement occurs when the government communicates directly, expressing a desire for action. Such communication is reasonably likely to induce the private actor to commit the action, and the action induced is regulatory and directed toward a third party.
• In this case, government actors campaigned to encourage social media companies to silence protected speech, crossing the line from expressing government opinion to regulating private speech. The government's substantial direct communications, the circumstances surrounding these communications, and the regulatory nature of the actions induced by the government all point to impermissible regulation of speech rather than permissible government speech.
• The brief argues that the Fifth Circuit's test for significant encouragement collapses into the control test, which evaluates whether the government exercises active and meaningful control over a private party's decision. This narrow interpretation allows the government to pressure social media platforms into censoring protected speech as long as it avoids direct involvement in decision-making, undermining the First Amendment's constraints on government regulation of speech.

Charlie Kirk, David Harris, Jr., and Robby Starbuck

• Charlie Kirk, David Harris Jr., and Robby Starbuck, prominent right-wing figures with significant online followings, filed a brief to emphasize the detrimental impact of the federal government's campaign to censor online expression through major social media platforms. They say their content was directly affected by this campaign, highlighting their vested interest in safeguarding free speech and opposing the government's efforts to suppress dissenting viewpoints on COVID-19, election procedures, and other matters of public concern.
• They argue that the government's campaign constitutes state action that infringes upon First Amendment rights by coercing or significantly encouraging social media platforms to censor content. The brief details instances where the government's actions directly led to the suppression of their and others' speech online, underscoring the violation of the First Amendment.
• The brief supports the assertion that respondents have Article III standing as their censored content lies at the heart of the government's censorship efforts. It argues that the government's campaign has made an appreciable difference in the moderation policies and practices of social media platforms, thus affecting the respondents' ability to communicate freely online.

Claremont Institute's Center for Constitutional Jurisprudence

• The Claremont Institute's Center for Constitutional Jurisprudence, represented by counsel John C. Eastman and Anthony T. Caso, filed a brief to support the respondents, emphasizing the importance of safeguarding First Amendment rights against government efforts to censor speech on social media platforms. They say their interest in the case is driven by their mission to restore and uphold the principles of the American founding, including the critical principle that freedom of speech is essential for a functioning republic.
• The brief argues that the government's actions to censor or suppress speech through coercion or partnership with social media platforms constitute a violation of the First Amendment. It highlights that such government-induced censorship interferes with free elections and the democratic process, undermining the foundational principle of popular sovereignty. It asserts that both direct censorship efforts and indirect pressures to suppress dissenting viewpoints on matters of public health, elections, and other critical issues violate constitutional guarantees of speech and press freedoms.
• The brief supports that respondents have Article III standing, as the government's challenged conduct has directly impacted their ability to engage in free speech. It further holds that this conduct transformed private social media companies' content-moderation decisions into state action, violating the respondents' First Amendment rights. It also argues that the terms and breadth of the preliminary injunction are proper and necessary to prevent further First Amendment infringements. The brief urges the Supreme Court to recognize the severity of executive branch censorship efforts and to affirm protections against such indirect censorship tactics.

Foundation for Individual Rights and Expression, National Coalition Against Censorship, and First Amendment Lawyers Association

• The amici curiae that participated in this brief are:
• The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending the individual rights of all Americans to free speech and free thought.
• The First Amendment Lawyers Association is a bar association comprised of over 150 attorneys whose practices emphasize the defense of Freedom of Speech and the press and advocate against all forms of government censorship.
• The National Coalition Against Censorship (NCAC) is an alliance of more than 50 national non-profit educational, professional, labor, artistic, religious, and civil liberties groups united in their commitment to freedom of expression.
• The brief argues that the Fifth Circuit correctly identified two forms of unconstitutional informal censorship: intimidation tactics creating a "system of informal censorship" and government actors being "liable for the actions of private parties" due to a "close nexus" that provides "significant encouragement." It says the government's bullying and intimidation tactics, even if subtle, can constitute coercion, and the court provided a four-factor test to identify when government speech crosses the line into impermissible coercion. The test considers factors such as the speaker's word choice and tone, whether the speech was perceived as a threat, the existence of regulatory authority, and whether the speech refers to adverse consequences.
• The court also defined "significant encouragement" of censorship, requiring the government to actively and meaningfully control private party decisions through entanglement or direct involvement in carrying out decisions. The essential question is not whether a private party becomes a state actor when co-opted by the state but whether state actors have a close enough nexus to private decisions to become responsible for them, violating the First Amendment.
• Amici argues that the officials' authority over social media platforms was evident, as they could influence federal enforcement nationwide and threatened antitrust enforcement, repeal of Section 230 immunities, and other reforms. Various government officials, including those from the White House, FBI, CDC, and CISA, engaged in significant encouragement by pressuring platforms to change moderation policies, effectively rewriting them and becoming responsible for private editorial decisions, thereby violating the First Amendment.
• The Fifth Circuit issued a tailored injunction to address the government's unlawful coercion and entanglement in social media platforms' operations. It was modified to target coercive government behavior. The injunction explicitly prohibits officials from coercing or significantly encouraging social media companies to alter their content moderation policies, aligning with First Amendment precedents and allowing lawful communications while excluding officials not proven to have violated the First Amendment.
• Relatedly, the NetChoice cases question whether states can directly control social media platforms' moderation decisions, while this case examines whether government actors can achieve similar ends through informal pressure. FIRE's amicus brief in the NetChoice cases emphasized the issue of whether government or private actors should have the predominant role in overseeing social media moderation, urging the Court to strike down state regulation as a violation of the First Amendment. The brief argues that the common thread in these cases is the abuse of governmental power, with political actors selectively invoking the First Amendment to suit their agendas. The First Amendment should be upheld as a neutral principle, not a tool for government actors to advance their interests in the culture wars.

Institute for Free Speech

• The Institute for Free Speech (IFP) is “a nonpartisan, nonprofit organization dedicated to protecting the First Amendment rights of speech, assembly, press, and petition” that conducts scholarly work and “represents individuals and civil society organizations in litigation securing their First Amendment liberties and advancing free speech.” IFP urges the Court to “adopt a bright-line prohibition against the government soliciting third parties to remove the otherwise lawful political speech of another party.”
• It believes that such a bright-line rule “best protects lawful political speech from indirect censorship” because the existing multi-factor tests deal with “squishy” factors like tenor and tone and that this would be in line with the Bantam Books holding. IFP notes that political speech is at the core of the First Amendment, and the Court has previously rejected complex rules for political speech protections in cases like Citizens United. As an example of government coercion in this case, the brief cites that “public officials routinely “flagged content for removal” and, for example, informed social media companies that “‘removing bad information’ is ‘one of the easy, low-bar things you guys [can] do to make people like me think you’re taking action.’”
• IFP further discusses the role it thinks the government should play in political speech. “The government is free to push back on ‘speech that is false’ with its own ‘speech that is true.’” Yet, it also writes that “government speech often poses a unique threat that private speech does not—because it is spoken with the coercive power of the government implicitly behind it” and thus “must be carefully constrained.”

International Center For Law & Economics

• The International Center for Law & Economics (ICLE) is a nonprofit, nonpartisan global research and policy center that builds intellectual foundations for sensible, economically sound policy. ICLE promotes using law-and-economics methods and economic learning to inform policy debates. The brief argues that the First Amendment safeguards the marketplace of ideas from government interference, recognizing that challenging false speech with true speech is the solution. Government coercion to suppress dissenting views undermines the scientific enterprise and deprives the public of informed decision-making. Unpopular speech may be silenced without protection, hindering societal progress and democracy. The marketplace allows for the competition of ideas, where truth can prevail over falsehood through rational discourse.
• The brief also argues that government intervention in content moderation on social media platforms is unconstitutional, as it violates the First Amendment's prohibition against abridging speech based on its message, ideas, subject matter, or content. The competitive nature of the marketplace of ideas ensures that social media platforms adjust their content moderation practices based on consumer demand and market forces without the need for government interference.
• The Fifth Circuit's test for determining government coercion, derived from Bantam Books, fails to capture the essence of the Supreme Court's ruling, which focuses on the objective actions of the government rather than the subjective response of private actors.

Rep. Jim Jordan, et al.

• Representative Jim Jordan (R-OH) and 44 other GOP Senators and Members of Congress, emphasizing their constitutional duty to uphold the First Amendment, support the respondents. The amici argue that the executive branch's coercion of private companies to censor speech on matters of public concern, including COVID-19, elections, and Biden family influence peddling, distorts the free marketplace of ideas and infringes upon First Amendment rights. Their main arguments include:
• The Biden Administration engaged in a sustained effort to coerce private parties into censoring speech, leveraging the influence of federal authority against speech it disfavors.
• Official pressure to suppress speech, including direct and indirect actions through entities like CISA and the Election Integrity Partnership, violates the First Amendment.
• The coercion has extended to censoring discussion on the origins and management of COVID-19, elections integrity, and allegations related to the Biden family, often blurring the lines between factual discourse and so-called misinformation.
• The brief alleges that the Administration's actions have effectively transformed private social media companies’ content-moderation decisions into state action. Through coercion and collusion, this transformation has violated respondents' First Amendment rights by stifling public debate and censoring information on matters of public concern.
• The lawmakers argue that the respondents have Article III standing, given the direct impact of the government's actions on the suppression of speech. They support the premise that the government's conduct constitutes state action that violates First Amendment rights and asserts that the preliminary injunction's terms and breadth are proper, aiming to halt the Administration’s unlawful conduct to protect free speech and public debate. The brief urges the Supreme Court to affirm the lower court's decisions, emphasizing the necessity of safeguarding First Amendment rights against executive branch coercion that compromises the integrity of public discourse and the free exchange of ideas.

Justin Hart and the Liberty Justice Center

• Justin Hart and the Liberty Justice Center, a nonpartisan public-interest litigation firm, support the respondents, arguing that the federal government's collaboration with social media platforms in censoring COVID-19-related content constitutes state action that infringes on the First Amendment rights. The brief argues that Hart's own litigation against Meta Platforms highlights the broader issue of government-directed censorship affecting 20 million pieces of content, including his posts.
• The brief details the Biden Administration's training provided to social media companies, aiming to enhance their content moderation capabilities specifically for COVID-19 misinformation. This government-led initiative is presented as a clear example of state action, where the government not only pressures but also equips platforms with the tools and guidelines to act as effective censors of dissenting views on COVID-19. By arguing that such training and subsequent censorship activities are tantamount to state action, the brief contends that these efforts violate the First Amendment. The government's direct involvement and the benefits it derives from having dissenting voices silenced are highlighted as evidence of unconstitutional behavior.
• The brief urges the Supreme Court to uphold the Fifth Circuit's decision, emphasizing the need to protect individuals' First Amendment rights against government overreach through social media censorship. The collaboration between the government and platforms in suppressing specific viewpoints fundamentally threatens free speech, particularly concerning public health discourse on COVID-19.

Liberty Counsel

• Liberty Counsel is a nonprofit public interest legal organization that advances religious freedom, freedom of speech, and human life. The brief alleges that this censorship is part of a global trend, termed the "Censorship Industrial Complex," which aims to suppress dissenting voices. The Fifth Circuit rightly deemed this state action unconstitutional, emphasizing the need to protect free speech and prevent government coercion.
• The brief says that the Fifth Circuit identified the government's coercion of social media platforms into censoring content as violating the First Amendment, reflecting a global trend of governments using censorship to control narratives. Social media platforms have become crucial for communication and sharing news, making them targets for government censorship worldwide, as seen in India, Turkey, Germany, Brazil, and other countries.
• The collaboration between governments and social media platforms to manage user content poses a significant threat to free speech, allowing governments to indirectly censor content by pressuring platforms to remove certain content.
• Governments employ various censorship tactics, including website blocking, content manipulation, imprisoning bloggers, and coercing website owners to remove content. These tactics aim to control public discourse and limit access to information that contradicts official narratives. Despite evidence of this global censorship enterprise, the Biden administration has defended its actions, raising concerns about government-coordinated censorship at the highest levels in America.
• The Biden administration's coercion of social media platforms to censor certain viewpoints, particularly conservative speech, is a clear example of viewpoint discrimination, as established by extensive evidence presented in the case. Government interference in regulating speech based on preferred narratives undermines fundamental free speech principles in the digital age and must be rejected to uphold constitutional protections.
• Individuals refrain from expressing their thoughts or opinions due to fear of potential consequences, such as account suspension, doxing, or legal repercussions, resulting in self-censorship. Censorship of speech on matters of public importance often has the opposite effect, driving dissent underground and fostering conspiracy theories rather than promoting public stability.

Louder with Crowder, LLC

• Louder With Crowder, LLC, an influential right-wing online political daily show, filed the brief to emphasize the importance of protecting constitutionally guaranteed free speech within social media platforms, which it argues serve as today's public square. The brief argues that the federal government's coercion of social media platforms to censor content violates the First Amendment and undermines Section 230 protections, effectively transforming these platforms into state actors and subjecting their content moderation decisions to Constitutional scrutiny.
• The brief implies support for the Supreme Court to clarify the standard for jawboning claims, advocating for a distinction between legitimate government persuasion and unconstitutional coercion that infringes on First Amendment rights. It suggests that the government's actions of pressuring social media platforms for content moderation amount to a prior restraint on free speech, calling for a revaluation of the government's role in influencing platform content policies.
• While not explicitly discussing Article III standing, the brief centers on the broader impact of government interaction with social media on free speech. It indirectly supports the notion that respondents have been sufficiently affected to challenge the government's actions, and it contends that the government's conduct has indeed transformed private content-moderation decisions into state action, thus violating First Amendment rights.
• The brief stops short of directly commenting on the terms and breadth of the preliminary injunction but underscores the necessity of judicial intervention to prevent government overreach and protect free speech online. The brief supports the view that the Supreme Court rejects the majority of the Fifth Circuit's prior ruling to preserve the integrity of digital public discourse and the Constitutional protection it requires.

The Manhattan Institute, React19, and three vaccine-injured individuals

• The Manhattan Institute, REACT19, and three individuals who claim they suffered injuries after receiving COVID-19 vaccines filed a brief arguing that the government's actions in pressuring social media platforms to censor content related to vaccine injuries violate the First Amendment rights of those sharing their personal experiences and seeking support. The brief emphasizes the importance of preserving a free and open marketplace of ideas, especially concerning scientific discourse, and outlines how the government's conduct has harmed the individual amici by censoring their stories and discussions on social media platforms.
• The brief supports the notion that the government's conduct has transformed private social media companies’ content-moderation decisions into state action. It argues that this transformation violates the First Amendment rights of the respondents and others who have been censored. It highlights the coercion and entanglement between the government and social media platforms, resulting in censorship that harms public discourse and the individuals affected by vaccine injuries. The brief advocates for the Court to recognize the detrimental effects of government influence on the free exchange of ideas on social media, specifically regarding scientific and health-related discussions.
• The amici argue for the necessity of the Supreme Court affirming the preliminary injunction against the government to prevent further First Amendment infringements. They urge the Court to recognize the severe impact of the government's censorship on individuals’ ability to communicate about their medical conditions, seek support, and share information. The brief highlights the personal stories of the “vaccine-injured” amici to illustrate what it says are the real-world consequences of the government's actions, including psychological trauma and the suppression of essential health-related discourse.
• Hence, the amici curiae supports the respondents' position that the government's pressure on social media platforms to censor content constitutes a violation of the First Amendment, urging the Supreme Court to protect the right to free speech, especially in discussions of significant public interest like vaccine safety and scientific inquiry.

State of Montana, 15 other states, and the Arizona Legislature

• Republican attorneys general in Montana, Alabama, Alaska, Florida, Georgia, Idaho, Iowa, Kansas, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and the Republican-controlled Arizona Legislature submitted this brief jointly in support of respondents in order “to safeguard their right ‘to vindicate their own sovereign and quasi-sovereign interests.’” Amici argues that Missouri and Louisiana have standing to bring this case in the face of an “extensive federal censorship campaign…undermines ‘deliberative democracy.’”
• The states primarily argue that the respondents have standing because they were directly injured by the federal governments’ actions – both because “their own social-media posts were censored in response to federal pressure on social media platforms” and “the censorship campaign directly interferes with the States’ sovereign and quasi-sovereign interest in hearing and engaging with their citizens’ views on matters of enormous public importance.” They go on to argue that “even if the States don’t have First Amendment rights, they have asserted an Article III injury” and supported this argument with cases where vendors were found to have standing to assert the rights of their potential customers.
• The states also assert that “[t]he standing inquiry is relaxed in the First Amendment context.” They address the applicability of the ‘Mellon bar,’ which establishes that “a state cannot sue the federal government when it seeks to represent its citizens in a purely third-party parens patriae capacity.” This bar, they argue, does not apply to this case because Mellon did not deal with threats to ‘quasi-sovereign rights.’
• This portion of Amici’s argument also addresses the parallels between Murthy v. Missouri and the NetChoice cases that the Supreme Court recently heard. They note that“roughly two dozen states have sought to address social-media censorship ‘through [their] sovereign lawmaking powers’” to support their assertion of States’ quasi-sovereign interest in social media censorship.

National Institute of Family and Life Advocates

• The National Institute of Family and Life Advocates (NIFLA) is a national legal network for pro-life pregnancy resource centers and medical clinics, with over 1,770 member centers. It says its interest in the case stems from concerns over public officials' attempts to encourage and pressure private actors to suppress speech on matters of public concern, including but not limited to issues around COVID-19 and the 2020 election. NIFLA's involvement highlights its broader mission to protect pro-life speech from viewpoint-based censorship by public officials, which it argues is a direct threat to the First Amendment rights of pro-life advocates and others expressing disfavoured viewpoints.
• The brief argues that the executive branch's actions in coercing or significantly encouraging private companies to censor speech constitute state action that violates the First Amendment. It emphasizes the danger of "official censorship by private proxy" to First Amendment freedoms, advocating for strict scrutiny of government actions that indirectly suppress free speech through private entities. The brief supports the position that such governmental pressures transform private content moderation into state action, infringing upon the First Amendment rights of the respondents and others whose speech has been suppressed.
• NIFLA advocates for the Supreme Court to affirm the lower courts' decisions, emphasizing the necessity of protecting the First Amendment from encroachments through indirect censorship. The brief highlights the importance of scrutinizing not just overt government coercion but also subtle forms of encouragement that lead private companies to censor disfavoured ideas. By detailing how the government's actions have directly impacted pro-life speech and other matters of public concern, the brief underscores the broader implications of the case for free speech and the marketplace of ideas.
• Therefore, the Amicus Brief by NIFLA supports the respondents' claim that the government's actions in pressuring social media platforms to censor specific content amount to unconstitutional state action that violates First Amendment rights. The brief calls for the Supreme Court to safeguard free speech by rejecting attempts by public officials to outsource censorship to private entities.

National Religious Broadcasters

• National Religious Broadcasters (NRB) is a “non-partisan association of Christian broadcasters” with 1,487 members who “reach a weekly audience of approximately 141 million American listeners, viewers, and readers through radio, television, the Internet, and other media.” It “believes that religious liberty and freedom of speech together form the cornerstone of a free society.” NRB’s brief argues that the Court “should rule that the government of the United States may never seek to suppress protected speech” regardless of the “degree of coercion employed.”
• The brief is framed around the contention that “government cannot prescribe what shall be orthodox ‘in politics, nationalism, religion, or other matters of opinion.’” It alleges that the government is censoring via intermediaries rather than speaking on its own or simply encouraging social media platforms to promote its position. NRB characterizes the Biden Administration’s actions at issue as coercion because it allegedly “meticulously monitor[ed] social media to discover instances of voices carrying messages contrary to the White House position and then suggest[ed], ask[ed], cajole[d], demand[ed], or insist[ed] that social media outlets ban or suppress the voices or viewpoints the government does not favor.”
• It then attempts to undertake a historical analysis of instances where the government tried to suppress speech. The Sedition Act of 1798 was opposed by multiple founding fathers, and the Supreme Court has affirmed that the “attack upon its validity has carried the day.” In the 1830s, abolitionist literature and newspapers were officially banned by statute in many southern states. In ensuing federal debates on the subject, bills to ban the delivery of slavery or abolitionist mail by the Post Office were argued to be violations of the First Amendment.

The Rutherford Institute

• The Rutherford Institute, a nonprofit civil liberties organization, filed the brief in support of the respondents to defend the First Amendment rights against government-induced censorship on social media platforms. It says its interest in the case is driven by a commitment to resisting tyranny and threats to freedom by ensuring government adherence to the rule of law and constitutional rights. The brief argues that the federal government's efforts to coerce social media platforms into removing or de-platforming disfavoured viewpoints under the threat of punitive retaliation violate the First Amendment.
• The brief alleges that this case illustrates a disturbing trend of government action to silence dissenting viewpoints. It extends beyond the specific issues of COVID-19 vaccines and safety measures or Hunter Biden’s laptop to a broader pattern of suppressing speech in favor of the government's preferred viewpoints. It argues that social media has become a vital platform for personal and political engagement, effectively acting as the modern-day equivalent of the Speaker’s Corner. Thus speech on these platforms should be entitled to First Amendment protections from government interference.
• The Institute supports the respondents' position that they have Article III standing, given the direct impact of government-induced censorship on their First Amendment rights. It holds that the government's conduct has transformed private social media companies’ content-moderation decisions into state action, violating the respondents' First Amendment rights.
• The brief asserts that the terms and breadth of the preliminary injunction issued by the Fifth Circuit are proper and necessary to prevent further First Amendment infringements. It argues that the government's coercive actions to suppress private speech based on viewpoint through social media companies are wholly incompatible with the First Amendment, urging the Court to uphold the injunction and make clear the impermissibility of such governmental coercion.

The “Twitter Files” Journalists: Matt Taibbi et al.

• The amici curiae are independent journalists who publish their work online. Their main argument is that the Fifth Circuit found a coordinated campaign by federal officials to censor Americans' online speech, contradicting the DOJ's dismissal of this collusion as mere education and information exchange between officials and platforms.
• The brief argues that this case highlights the dangers of allowing federal agencies like CISA to redefine their missions to silence criticism of government policy, emphasizing the need for constitutional restraints to prevent government-sponsored viewpoint-based censorship and protect free speech. It further alleges that the federal government engaged in direct censorship by pressuring social media companies to change their policies and target specific users and messages, impacting journalists and critics of the government's COVID-19 response.
• The brief claims that White House officials forced Meta (Facebook) to change its vaccine hesitancy policy through sustained pressure, threatening the company's business model. It says threats to eliminate Section 230 liability protections coerced platforms to censor critics of the federal government's COVID-19 response. The brief alleges that direct communications revealed White House pressure on Twitter to suspend specific users, demonstrating the government's influence over platform censorship policies.
• The brief claims that government officials collaborated with private groups, such as the University of Washington's Center for an Informed Public (CIP) and Stanford University's Internet Observatory (SIO), to censor domestic speech. These partnerships involved flagging social media content and pressuring platforms to censor users who were critical of government policies. It also alleges that CISA, through these partnerships, targeted political speech, journalists, and elected officials based on perceived misinformation or disinformation. The goal of these collaborations was to silence citizens and journalists critical of government policies, effectively circumventing First Amendment protections.
• Government actions hindered journalists' ability to publish on social media, impacting their role in contemporary reporting. This interference chilled online speech, amici argues, discouraging journalists from investigating and reporting on controversial government policies. Platforms became increasingly compliant with government pressures, further limiting journalistic freedom.
• DOJ seeks to expand government protections under the state actor doctrine, granting de facto immunity to intentional government actions that strip away individuals' constitutional rights, contrary to precedents set in Bantam Books v. Sullivan.

Informed Consent Action Network

• An anti-vaccination advocacy group, ICAN is a Texas-based 501(c)(3) that says its mission is to “‘put the power of scientifically researched health information’ into the public’s hands ‘and to be bold and transparent in doing so.’” ICAN runs an online talk show called The HighWire, which is live-streamed on social media platforms. Its YouTube channel and Facebook pages “were shut down for purported violations of the social media companies’ ‘misinformation policies,’” which ICAN contends violates its First Amendment rights. Its brief focuses on alleged harms suffered from these content removals.
• Its brief opens with a historical discussion of the relationship between government censorship of public discourse and the rise of authoritarianism. Then, it provides a timeline of The HighWire’s social media popularity and screenshots of YouTube’s communications with the channel when taking down its content related to alternative COVID-19 treatments and mask-wearing starting in July 2020. These screenshots show that the posts were taken down for “violating Community Standards against misinformation” and for violating YouTube’s terms of service. ICAN argues that “YouTube’s termination of The Highwire’s channel was in bad faith as it occurred without cause or fair warning” and that it negatively impacted ICAN and guests on their shows.
• The brief provides a similar timeline and screenshots of Facebook’s removals of The HighWire’s videos about COVID-19 starting in July 2020. ICAN contends that Facebook’s explanations were vague and that there was insufficient warning and reasoning when it was permanently removed from the site in November 2020.
• Finally, ICAN alleges that “[o]ther than governmental pressure, there is no explanation for why these companies purged [ICAN’s] platforms, which would be contrary to their business models of increasing engagements and interactions on their sites.” As social media platforms have a Section 230 liability shield, it argues, they do not have an economic incentive to censor content.

Amicus brief summaries in support of neither party

Chamber of Commerce of the United States of America

• The Chamber’s members include social media companies and other businesses that interact with the government as part of their normal operations. In its brief, the Chamber states that the lower court’s framing of the case transformed private social media companies' content moderation decisions into “state action” subject to the First Amendment, which could have implications for its members’ own First Amendment rights.
• The Chamber takes no position on whether the government unconstitutionally pressured social media companies to remove speech, but rather urges the court to shift its analytical framework for answering questions about “how far the government can go in attempting to influence the actions of private publishers, including social media companies, that are deciding what speech to disseminate.”
• The brief argues for the framework of Bantam Books, Inc. v. Sullivan. It states that if the government improperly pressured the companies, then their editorial discretion was violated, making them victims of government overreach.

Coalition for Independent Technology Research

• A coalition of independent technology researchers, including academics, journalists, and civil society representatives, CITR argues that the Fifth Court of Appeals ruling, which expanded which public-private interactions are subjected to constitutional constraints and judicial oversight, threatens independent tech research by undermining researchers’ ability to communicate with government officials and platforms for information sharing purposes and infringes on their First Amendment rights.
• While CITR explicitly states it agrees that government actors may not coerce private parties to suppress or exclude “disfavored speech,” the Court of Appeals’ ruling extends well beyond circumstances that restrained speech inconsistent with free and open debate and inquiry.
• While the Fifth Circuit Court of Appeals vacated the portion of the lower court ruling that dealt with researchers, the brief argues that it is not sufficient. “Simply vacating that portion of the injunction does not fully solve the problem, however,” argues CITR. “The Court of Appeals’ ruling, and the very broad injunction it left in place, will still have the effect of inhibiting and burdening constitutionally protected communications between researchers, platforms, and the government. The ruling substantially loosens the proof needed to demonstrate that private-public interactions have crossed the line from information sharing and attempts at mutual persuasion into state action.”
• CITR believes the Court provides doctrinal support for characterizing “routine and non-coercive interactions between researchers and government as state action,” allowing researchers to be falsely branded as arms of the state and exposing their private speech to constitutional constraints, judicial scrutiny, and micro-management. This chills routine interactions between government and tech companies and exposes researchers to burdensome litigation.

Floor64, Inc. d/b/a the Copia Institute

• This brief was filed by the Copia Institute, a think tank associated with the internet blog Techdirt.com, on behalf of the interests of social media platforms that will be directly affected by the resulting litigation. The brief characterizes the original suit as a “tug-of-war between state actors.” It supports neither party because neither party is “equipped to address the constitutional injury to others that looms if the injunction is upheld,” and asks the court to dissolve the injunction.
• By cutting platform providers off from their own government, the brief argues, it implicates their own expressive rights and their right to petition the government. The brief argues this is a facially unconstitutional attack on multiple rights protected by the First Amendment and surrenders those rights to the control of states that wish to control online expression.
• The brief points out that the Fifth Circuit “persistently concluded, without evidence, that the communications” with social media companies occurred entirely on government agencies’ “own initiative and not at the invitation of the platforms themselves in furtherance of their own interest in engaging with these officials, or their own volitional desire to act in accordance with their input.”

Electronic Frontier Foundation and the Center For Democracy & Technology

• EFF and CDT are two nonprofit organizations that focus on free expression and privacy in the digital world. They argue that while government co-option of content moderation systems poses serious threats to freedom of speech, there are clear times when it is “permissible, appropriate, and even good public policy for government agencies and officials to noncoercively inform, communicate with, and even attempt to persuade social media companies about the user speech they publish on their sites.”
• Amici believes the First Amendment test from Bantam Books v. Sullivan balances these competing interests by forbidding the government from coercing private entities to censor while recognizing that not every communication about users’ speech is unconstitutional.
• Amici asks the court to clarify this analysis to assist all stakeholders so essential communications can resume with proper speech safeguards in place.

Election Officials

• Amici is a bipartisan group of current and former state and local election officials. The officials state that social media networks are flooded with inaccurate information and outright lies that risk disenfranchising voters and pose threats to both national security and election workers’ safety.
• Social media platforms rely on election officials to supply their public education efforts, and it is within the platforms’ First Amendment right to decide what content to host on their platforms. The brief argues that the government exercising its own views on content curation and moderation is also consistent with the First Amendment, as long as the decision ultimately rests with the platforms themselves.
• “The Fifth Circuit’s expansive state action test incorrectly classifies benign, non-coercive governmental communication as ‘entanglement,’” attributing platforms’ content moderation decisions to the government. The election officials want free communication that allows for the government to advocate for its views on “responsible moderation policies and practices.”

The International Municipal Lawyers Association

• The Lawyers Association argues that “governmental efforts to persuade do not infringe the First Amendment so long as they do not threaten the exercise of state power to stifle protected speech.” They assert that attempts to convince are lawful, but attempts to coerce are not.
• Amicus asks the court first to consider whether a reasonable person would view the government’s speech as coercion and second clarify that government speech is not inherently coercive simply because the speaker possesses regulatory or enforcement authority.
• The Lawyers Association doesn’t take a position on how these factors play out. Instead, it asks the court for a clear and well-functioning test that permits local officials to perform their civic duties.

Knight First Amendment Institute at Columbia University

• The Institute asks the Supreme Court to clarify the First Amendment limitations on jawboning. It argues that the relevant doctrine is in “disarray,” with the constitutional framework issued by the Court in Bantam Books, Inc. v. Sullivan subject to lower courts’ undisciplined interpretations. The Institute asks the Court to evaluate this case under the coercion test from Bantam Books.
• The Institute asks the Court to clarify whether government actions were coercive, depending on the facts involved and their context, as well as the constitutional interests underlying that inquiry. It also asks the Court to explain why the First Amendment requires distinguishing ‘persuasion’ from ‘coercion’
• The brief argues for a narrow resolution of the case “without expecting jawboning doctrine to address all of the challenges created by the centralization of private power over public discourse.” The Court should not contort this doctrine to solve what are essentially issues of excess concentration and lack of competition.

NetChoice, The Computer & Communications Industry Association, the Chamber of Progress, and The Cato Institute

• The amici open their brief by stating that the First Amendment prohibits the government from censoring, compelling, or otherwise abridging speech and protects private digital services’ decisions about what user content to publish or remove. While amici took no position on whether the governments’ communications with social media companies about content moderation decisions violated the First Amendment, the questions the case raises intersect with issues around compelled speech raised in two other NetChoice cases the Supreme Court will hear this year: Moody v. NetChoice and NetChoice v. Paxton.
• Amici argues that 1) the government can’t bypass the First Amendment by seeking to compel speech through informal and indirect means and 2) regardless of whether the government is found to have unconstitutionally compelled social media companies to censor speech, the court should clarify that social media companies are not state actors and may not be held liable for the government’s actions.
• Amici urges the courts to uphold digital services’ rights to curate and disseminate content without government interference, ensuring the government does not “do indirectly what it cannot do directly.” It also asks the court to explain that jawboning claims must be brought against the government rather than the private entity.

The Reporters Committee For Freedom Of The Press

• The Reporters Committee urges the Court to “closely tether its analysis” to considerations that could also characterize routine interactions between the government and journalists.
• The Reporters Committee opened its brief by arguing that government officials often will attempt to sway journalists’ coverage and that, if taken too far, it could lead to “informal censorship.” However, these same public officials are vital sources of information for the press about matters of core public concern. The brief argues that if these routine interactions were subject to First Amendment constraints, “then the Constitution would entitle the unhappy, would-be speakers left on the sidelines to apply for an injunction requiring equal treatment. That result would turn the First Amendment on its head.”
• The Committee additionally worries that a “too sensitive test for coercion” could license “fishing expeditions” where plaintiffs believe there is evidence of collusion between journalists and public officials.