A high-stakes U.S. Supreme Court case to decide if collaboration between the federal government and social media companies to censor online speech violates the Constitution could hinge more on decades-old court precedents than on questions of internet-age technology, according to Children’s Health Defense (CHD) attorneys.

CHD filed an amicus brief with the Supreme Court ahead of March 18 oral arguments in Murthy v. Missouri, a landmark censorship case filed in May 2022 by then-attorneys general of Missouri (Eric Schmitt) and Louisiana (Jeff Landry) and other plaintiffs.

An amicus brief is filed by non-parties to a lawsuit to provide information that has a bearing on the issues and to assist the court in reaching the correct decision.

CHD’s brief contends that the many documented contacts between White House officials and social media platforms pressing them to restrict particular voices and viewpoints cross a clear constitutional line protecting free speech.

CHD President Mary Holland, a co-author of the brief, told The Defender:

“If the court does not find what the Biden administration did to be unlawful, the First Amendment will really no longer exist. Then the government can simply ask proxies to do whatever it wants. It can outsource all its dirty work ‘legally’ in violation of the First Amendment.”

Murthy v. Missouri alleges President Joe Biden and other top administration officials “pressured and colluded” with social media companies to censor and suppress users and posts that contradicted the official government narrative on COVID-19 origins, vaccines and treatments and other topics.

The Biden administration in September 2023 petitioned the Supreme Court to block a lower court injunction barring the administration from communicating with social media pending a final decision in the case.

The upcoming oral arguments will center on the lawsuit’s key claims and how lower courts interpreted them when making or upholding their injunctions.

Robert F. Kennedy Jr. and CHD filed a similar case against the Biden administration in March 2023 and also asked for an injunction. The cases were consolidated in July 2023, in the U.S. District Court for the Western District of Louisiana.

On Feb. 14, Judge Terry A. Doughty granted a preliminary injunction in Kennedy v. Biden but simultaneously stayed the injunction until 10 days after the Supreme Court rules on the Murthy v. Missouri injunction.

The Supreme Court is expected to issue a ruling on the case by no later than June when its current session ends.

Brief’s key arguments and connection to Kennedy v. Biden suit

CHD’s amicus brief, written by Holland and attorney Jed Rubenfeld on behalf of the plaintiffs in Kennedy v. Biden, advances two central arguments:

1. That the Biden administration’s censorship campaign is unconstitutional regardless of whether its communications with social media companies satisfy “state action” tests such as coercion, joint activity, conspiracy, etc. As the suit names government defendants, state action is self-evident and the only remaining question is whether their actions are constitutional — and they are not.
2. That the “copiously documented” coordination between the Biden administration and social media companies means those companies enacted government-encouraged censorship, legally tying the platforms’ actions to enabling by federal actors. Hence, “state action” is clearly established.

Either argument on its own should be sufficient to warrant an injunction, according to Holland and Rubenfeld.

In the Murthy v. Missouri petition to the Supreme Court, the government argued that the 5th U.S. Circuit Court of Appeals “erred in finding coercion by the White House, Surgeon General’s office, and FBI because the court did not identify any threat, implicit or explicit, of adverse consequences for noncompliance.”

It also argued upholding the injunction would “impose irreparable harms” to government speech rights by preventing it “from making its views known to American citizens.”

Following several temporary pauses on the 5th Circuit injunction, the Supreme Court on Oct. 20 granted an appeal to block the injunction pending its ruling on the case.

As frequent targets of the White House censorship in question, Kennedy, CHD chairman on leave, and the other plaintiffs in the Kennedy v. Biden case have a vested interest in the outcome of the Supreme Court hearing, which is expected to affect how other courts adjudicate Kennedy v. Biden and similar cases, according to Holland.

Norwood v. Harrison prohibits government-encouraged rights violations 

CHD’s brief spotlights the Supreme Court’s unanimous 1973 ruling in Delores Norwood et al. v. D. L. Harrison, Sr. et al., which held that Mississippi could not provide state textbooks to private schools that discriminated on the basis of race.

“There can be no doubt the Government has done here exactly what Norwood proscribes,” Holland and Rubenfeld wrote. “It has deliberately sought to ‘induce, encourage [and] promote’ social media platforms to censor core political speech the Government could not constitutionally censor on its own.”

By intensifying pressure on platforms to tackle “misinformation,” the White House improperly worked around free speech rules, avoiding overt bans by coercing corporations to carry out the censorship.

According to CHD’s brief, the Norwood principle applies regardless of whether social media companies’ decisions meet the definition of state-encouraged action. This is because the Constitution primarily constrains behaviors by public servants that infringe on unalienable rights — and Biden administration officials in their government capacity systematically urged widespread viewpoint exclusion in ways that failed constitutional guarantees.

Citing Reno v. American Civil Liberties Union, which refers to Norwood, the brief states:

“In ‘the vast democratic forums of the Internet,’ … Federal agents cannot be permitted to censor protected speech by deliberately seeking to ‘induce, encourage or promote’ … such censorship by the private companies that control those forums.”

“If the judiciary does not intervene on this record, a brave new free speech world awaits us,” the brief states, adding, “We may be living in that world already.”

Skinner decision establishes clear ‘state action’ precedent

Looking beyond unlawful encouragement, the brief contends a state action finding does not hinge solely on issues of coercion and “joint activity” (collusion) but that state-authorized immunity from prosecution should play a decisive role as well.

The keystone exhibit is Samuel K. Skinner v. Railway Labor Executives’ Association — a 1989 verdict finding that certain employee drug tests, though technically conducted by private railroads, were unconstitutional “state action.”

The Supreme Court found, according to CHD’s brief, that the federal government had 1) “removed all legal barriers to the testing,” including immunizing the railways against liability when performing the tests, 2) “made plain … its strong preference for [the] testing” and 3) “expressed its ‘desire’ to ‘participate’ in the testing.”

According to CHD, Section 230 of the Communications Decency Act — shielding social media platforms from lawsuits over content removal choices — combined with the Biden administration officials’ repeatedly stated desires for greater anti-“misinformation” efforts and demands to suppress specific individuals, suggest social networks became the government’s censors-for-hire.

“The case for a state action finding here is stronger than in Skinner,” Holland and Rubenfeld wrote, pointing to the federal government repeatedly singling out “particular viewpoints, information, and speakers for censorship through its systematic, persistent, and innumerable communications with social media companies.”

The brief calls for the law to keep pace with “the rise of behemoth social media platforms” that are prone to amplifying violations of free speech expression rights, warning that:

“If the Court decides this case unwisely, it runs the risk of approving ‘the most massive system of censorship in the nation’s history’ … — a brave new world in which the Government can and will censor dissent and dissenters by proxy, controlling what hundreds of millions of Americans can say, see and hear every day.”

Curbing state-supported suppression without overreach

Finally, the brief argues for a narrow injunction directly addressing documented violations without impeding Biden officials’ rights to otherwise communicate with social media or the public. It suggests prohibiting only federal agents’ private communications that encourage social networks to restrict constitutionally protected speech.

The brief cites precedents establishing that statements made by public employees as part of their official duties are not protected under the First Amendment, which instead protects citizens’ speech and the press from “government interference.”

While allowing the government unrestricted public commentary on its policy preferences, this judicial guardrail would protect social media companies from facing legally questionable pressure to cancel users and suppress conversations on their platforms.

The brief states:

“If our elected representatives and our administrative officers have lost faith in the First Amendment, and believe that the American people should not be permitted to express or see certain facts or viewpoints, they would be free to publicly say so any time they wished.”

Other amicus briefs filed in support of respondents in the Murthy v. Missouri case include ones by Rep. Jim Jordan and 44 other members of Congress; the Association of American Physicians and Surgeons; “Twitter Files” journalists Matt Taibbi, Michael Shellenberger, Lee Fang and others; the Institute for Free Speech; The Manhattan Institute, React19 and Three Vaccine Injured Individuals; the Informed Consent Action Network; America’s Frontline Doctors and Dr. Simone Gold; and The Rutherford Institute.