12 House Republicans Urge 5th Circuit to Affirm Social Media Injunction

The House GOP members wrote in support of the July 4 preliminary injunction imposed by U.S. District Judge Terry Doughty, but temporarily stayed pending the 5th Circuit appeal (see 2307140067) that bars dozens of administration officials from conversing with social media companies about content moderation.

Wielding “threats of intervention,” the administration “has engaged in a sustained effort to coerce private parties into censoring speech on matters of public concern,” said the brief. “Very recent evidence,” unearthed in the weeks since the injunction was imposed by a House Judiciary investigation, “further corroborates” Doughty’s July 4 findings that the administration “has coerced or colluded with social media companies to censor speech,” it said.

The administration, on issue after issue, “has distorted the free marketplace of ideas promised by the First Amendment, bringing the weight of federal authority to bear on any speech it dislikes,” including memes and jokes, said the brief. Big Tech “often required little coercion” to do the administration’s bidding on some issues, it said.

Generally “eager to please their ideological allies and overseers in the federal government,” Big Tech companies and other private entities “repeatedly censored accurate speech on important public issues,” said the brief. When the censors “were too slow to suppress speech” that the “partisans” in the White House disliked, “the federal government prodded them back into action with continual and increasing pressure,” it said.

“Official pressure” to suppress speech violates the First Amendment, said the brief, which came three days before the 5th Circuit holds oral argument on the injunction Thursday in New Orleans. The First Amendment “stands against any governmental effort” to coerce or “otherwise burden” the free speech of private entities, “even if that action falls short of outright suppression,” it said. Doughty’s findings of a government conspiracy to suppress free speech “are clearly correct,” it said. Because the administration “repeatedly used government coercion to stifle public debate,” and Doughty’s injunction “rightfully halts” the administration’s unlawful conduct, the 5th Circuit should affirm, it said.

A second amicus brief Monday, also in support of affirming Doughty's injunction, was filed by Robert F. Kennedy Jr. and Children’s Health Defense, plaintiffs in the case consolidated with the Louisiana and Missouri attorneys general's complaint against dozens of administration officials (see 2307250012). Litigants “naturally exaggerate,” said the Kennedy brief, but it nonetheless “may actually be true that the fate of the freedom of speech in America” depends on what the 5th Circuit “does with this case.”

RFK Jr. “as much as anyone in the country has been singled out and targeted by the government’s censorship campaign,” said the Kennedy brief. Kennedy himself “therefore has a profound, personal interest in halting the government’s censorship-by-proxy efforts,” it said.

Companies like Facebook and Google “decide every day for hundreds of millions of Americans what they are allowed to say, see, and hear,” said the Kennedy brief. Because these are private companies, the Constitution ordinarily wouldn’t apply to their content moderation decisions, it said. “But as we now know, the federal government has for several years been waging a systematic and highly successful -- though often clandestine -- campaign to get these companies to do what the government itself cannot: censor protected speech on the basis of its content and viewpoint,” it said.

There has thus emerged “a new and revolutionary First Amendment constellation,” the likes of which “America has never seen,” said the brief. It’s “paired” with the most massive system of censorship in U.S. history, it said. “The burden of deciding what to do with this new First Amendment constellation rests on the shoulders” of the 5th Circuit, it said.