Twenty-two states, along with the District of Columbia, are urging the Supreme Court to back the Biden administration’s coordination with Big Tech to censor speech online.
In a brief, the states wrote that the Fifth Circuit made a mistake in finding the federal government’s likely “coerced or significantly encouraged” content moderation in violation of the First Amendment. In blocking the government from engaging in these activities, the states argue that the court “significantly restricted the federal government’s essential role in participating in the marketplace of ideas.”
“This will impoverish, rather than protect, robust debate on matters of vital public importance,” the states argue.
The secretaries of state in eight states — Arizona, Colorado, Connecticut, Maine, Minnesota, New Mexico, Oregon, and Vermont — also filed their own brief urging the Supreme Court to reverse the Fifth Circuit’s ruling.
They worry that officials’ communications with platforms during the 2020 and 2022 election season have “essentially ended” ahead of “a critical and hotly contested 2024 election season,” which increases the risk that “dangerous, and even illegal, falsehoods about elections and voting will spread unchecked.”
“The First Amendment does not require states to sit idly by while false information about their work or the laws in their states spreads online,” the officials wrote. “To the contrary: to combat the explosion of false information about elections, officials like those in the office of amici here, and other states, made investments in combating this false information.”
They argue government agencies can “attempt to correct false speech,” adding that the “most effective way to do that is to stop it from spreading.”
Democratic Colorado Secretary of State Jena Griswold, who signed onto the brief, has also backed the Colorado Supreme Court’s decision to kick former President Donald Trump off the state’s ballot. Likewise, Democratic Maine Secretary of State Shenna Bellows ruled Dec. 28 that Trump was ineligible to appear on the state’s ballot, prompting him to appeal in state court on Tuesday.
New York Attorney General Letitia James is leading the 22 states’ brief.
Multiple states that signed on to the briefs have also recently had laws regulating speech struck down in court as violations of the First Amendment.
A federal judge blocked enforcement last year of New York’s online hate speech law, which required social media companies to “maintain mechanisms for reporting hateful conduct” on their platforms. The Second Circuit will hear oral arguments for New York’s appeal of the ruling in early 2024.
Last year, a judge also blocked California’s law that allowed disciplinary action against doctors who shared COVID-19 “misinformation,” which the state later repealed.
The Supreme Court also ruled last year that Colorado’s Anti-Discrimination Act (CADA) cannot compel Christian web designer Lorie Smith to create custom wedding websites for same-sex couples in violation of her religious beliefs.
U.S. District Court Judge Terry Doughty initially issued an injunction blocking the Biden administration from communicating with social media companies to censor speech, finding the Republican attorneys general of Louisiana and Missouri had “produced evidence of a massive effort by Defendants, from the White House to federal agencies, to suppress speech based on its content.” Doughty called the government’s censorship activities “Orwellian.”
Internal government documents revealed through the attorney general’s lawsuit revealed numerous instances of censorship, including the Cybersecurity and Infrastructure Security Agency (CISA) facilitating “switchboards” that allowed state and local election officials to flag misinformation for removal during the 2020 election.
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