Feds threatened social media companies with ‘adverse legislation’ if they didn’t censor online speech, new Supreme Court brief argues

Biden officials “threaten, pressure, and coerce social-media platforms to silence the core political speech of millions of Americans,” Missouri and Louisiana argue in a Wednesday brief that asks the U.S. Supreme Court to uphold an injunction against the administration.

The brief reveals new and detailed accounts of federal government online content meddling stretching over at least five years. As early as 2018, the brief claims, congressional staffers actually showed social media companies copies of “potentially adverse legislation” if they did not censor online content.

After the two states’ attorneys general — Missouri’s Andrew Bailey and Louisiana’s Jeffrey M. Landry — led other plaintiffs in suing to stop Biden coercion or collusion with Big Tech, both a federal judge and then an appeals court approved an injunction blocking top administration officials from leaning on social media companies to censor conservative speech online.

The Biden administration appealed the injunction to the U.S. Supreme Court, leading to the plaintiffs’ 41-page brief. The high court’s decision is expected at any time.

Biden officials, the brief says, “pressure the companies to censor disfavored viewpoints, and they also force the companies to rewrite their policies to ensure that future speech disfavored by the government will also be suppressed. In doing so, they impose a nationwide, de facto prior restraint against expressing disfavored viewpoints on some of the greatest debates of our time.”

Indeed, the injunction may be the only guarantee of free speech online during the ongoing 2024 presidential election cycle.

“Social-media platforms once provided ‘the most powerful mechanisms available to a private citizen to make his or her voice heard,’” the brief reads, quoting a case called Packingham v. North Carolina. “Under pressure of federal censorship, that is no longer true – a situation that is intolerable to the First Amendment.”

As the plaintiffs’ brief notes, in issuing an injunction pointedly on July 4th, U.S. District Court Judge Terry Doughty also pointedly noted that the Biden administration’s censorship regime is arguably “the most massive attack against free speech in United States’ history.”

The plaintiffs’ Supreme Court brief cites Judge Doughty’s “extensive, specific findings of fact, based on overwhelming evidence of federal interference” that even the Biden administration hasn’t challenged. “[T]he Government does not contend that a single finding of the district court is clearly erroneous.”

Nor did the appellate court, the brief notes.

Doughty issued “82 pages of factual findings supported by 591 citations of evidence” supported by “almost 20,000 pages of federal communications with social-media platforms and six full-length depositions of senior federal officials with direct knowledge of federal censorship activities,” the brief argues.

Likewise, a unanimous three-judge panel of the U.S. 5th Circuit Court of Appeals wrote that the Supreme Court “has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.”

Nor could the profoundness of this free speech dispute be clearer in the plaintiffs’ brief’s own wording:

“[T]he district court’s findings and the evidence establish an extensive campaign by federal officials in the White House, the Surgeon General’s Office, the CDC, and the FBI to silence disfavored viewpoints on social media. This campaign began in 2018, dramatically accelerated in 2021, and continues to the present day.”

“Government officials,” Judge Doughty wrote July 4th, “began publicly threatening social-media companies with adverse legislation as early as 2018.”

“Federal executive officials promptly began leveraging this pressure,” the plaintiffs’ brief elaborates, “to convince platforms to silence disfavored viewpoints and speakers on social media. In 2018, senior congressional staffers – coordinating directly with the FBI – began to conduct secret recurring meetings in Silicon Valley with the content-moderation officials of major social-media platforms to push for censorship of election-related speech.

“During these meetings, the staffers showed the platforms potentially adverse legislation.

“These actions by federal officials placed ‘intense pressure’ on platforms to censor election-related speech. … The platforms responded by adopting more restrictive moderation policies and engaging in thousands of ‘account takedowns’ at the FBI’s request. … The FBI began sending those platforms encrypted lists of ‘indicators’ – i.e., specific speakers, accounts, posts, and URLs – for the platforms to remove ‘one to five times per month.’ …

“Due to ‘pressure,’ the FBI convinced platforms to become ‘far more aggressive in taking down disfavored accounts and content in the 2018 and 2020 election cycles.’”


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