Because The Fifth Circuit Again Did Something Ridiculous, The Copia Institute Filed Yet Another Amicus Brief At SCOTUS

Free Speech

from the deja-brief-number-two dept

It was a busy December for the Copia Institute (and me), even just at the U.S. Supreme Court. In addition to filing (along with Bluesky and Mastodon admin Chris Riley) an amicus brief supporting NetChoice and CCIA in their combined cases, we also filed another one challenging the bizarre injunction imposed by the Fifth Circuit preventing the Biden Administration from communicating with technology companies.

Unlike in the NetChoice cases, where we supported their position, in this case, now captioned as Murthy v. Missouri, we filed in support of neither party. As we noted in our brief, we agree with the Biden Administration that the injunction is invalid and needs to be dissolved. But the interests that the Administration is seeking to vindicate – its own – are not the same as the interests we were trying to advance – namely everyone else’s, which this injunction threatens, even though no platform was ever a party to the litigation. It is also theoretically possible that the executive branch of the government could at some point exceed its constitutional bounds to pressure how others exercise their expressive rights. We disagree with the plaintiffs in this case that the executive branch so overstepped here, but would agree that if it did happen there should indeed be some remedy. But we filed this brief because no suitable remedy could ever look anything like what the Fifth Circuit came up with. Far from protecting anyone’s First Amendment rights, the Fifth Circuit itself instead became the state actor itself attacking them.

This case is separate from the NetChoice cases, but the issues raised in all of them are similar. The NetChoice cases address whether those who run Internet platforms have their own First Amendment rights in how they run them. We argued in those cases, and have argued all along, that the answer must be yes, and that just like a newspaper can choose what articles to run a platform operator must be free to choose what user expression to facilitate or moderate away. And just because some platforms are run by entire companies shouldn’t change that analysis; the same freedom that someone like Chris Riley as an individual has to run his platform as he personally wishes shouldn’t be extinguished just because lots of individuals have gotten together to decide how to run their platform together.

But that expressive freedom is violated by the Fifth Circuit’s injunction in at least two big ways. One way is similar to how the states of Florida and Texas have tried to attack that editorial freedom at issue in the NetChoice cases. In all these cases, how platforms operate their sites is ending up subject to government control. In the NetChoice cases it is by the states themselves, seeking to override the platforms’ discretion via statutes, whereas in this case it is by the courts, through the use of the injunction that inherently shapes how platforms can do their moderation. The effect in all these cases is the same: platforms are no longer free to run their sites as they see fit; instead their choices are being constrained by government interference.

Because here the upshot to the injunction is that platforms can no longer make moderation decisions if those decisions happen to agree with those ever expressed to them by someone in the executive branch of the federal government. Platforms must therefore either make their decisions in an information vacuum, without any input from agencies that may have expertise in the subject the platforms might have wanted to consult, or, in the wake of any consultation, they can only choose to do the opposite of what the agency might have suggested. Per the Fifth Circuit, any consultation would otherwise inherently taint the decision and make it something the platforms can no longer freely choose to act in accordance with.

But the injunction doesn’t just violate platforms expressive rights to operate their sites as they see fit; it also chills their petitioning rights. The petitioning right exists in large part because democracy depends on the people being able to communicate their will to those who represent them. But this injunction interferes with the ability of the public to talk to their government by inhibiting government officials from engaging in those conversations.

And they are so inhibited even if the platforms want to have those conversations. As we pointed out in the brief, the Fifth Circuit had an infantilizing view of platforms, as if it could not imagine any reason that a platform would have for engaging with executive branch agency expertise except in order to receive instructions for how to moderate in accordance with executive branch wishes. It could not conceive that a platform might want to, say, inquire with an agency with expertise in vaccines as it sought to develop a good moderation policy on medical disinformation, or one with expertise in election security when trying to develop a moderation policy addressing disinformation in that area. In the Fifth Circuit’s view all such conversations were inherently corrupt and for no other purpose than to immediately conscript the platform to do the executive agency’s bidding. And so, thanks to the injunction, platforms no longer get to have those conversations, no matter how much they would want to have them.

But if all the above wasn’t bad enough, there was another problem with the Fifth Circuit decision that we highlighted in our brief, relating to the plaintiffs and the court finding standing to even entertain their claims, let alone grant an injunction based on them. This case was weird because it was brought by an unholy alliance of both private plaintiffs and state plaintiffs. As explained above, the private plaintiffs should not have been entitled to injunctive relief by the courts: even if their rights had been violated – and as we explained in the brief, they had not been – the court shouldn’t be able to remedy a rights violation by violating the rights of someone else. But for the court to have granted the state plaintiffs, Louisiana and Missouri, standing to bring their claims against the platforms represented its own constitutional horror. After all, as states, these plaintiffs are themselves state actors. And these state actors wanted to be able to force platforms to exercise their expressive rights as they preferred. Unlike Texas and Florida in the NetChoice cases, which tried to do it themselves, here Louisiana and Missouri tried to use the courts to do it. And, bizarrely, the courts let them.

Worse, by crediting the idea that these states had their own First Amendment rights (as states!) to be vindicated in this litigation, the Fifth Circuit validated the proposition that the states were somehow entitled to co-opt platforms to advance their own speech interests. But such co-opting is not what the First Amendment allows. As we reminded the Supreme Court, its own decision in 303 Creative made clear that states did not have the power to force platforms to favor certain speech. But by allowing Missouri and Louisiana to advance claims challenging how platforms exercised their speech rights, the Fifth Circuit handed these states the very power the Supreme Court just last year reminded that they did not have.

Filed Under: 1st amendment, coercion, content moderation, free speech, jawboning, louisiana, missouri, murthy v. missouri, petitioning rights, vivek murthy