In May 2022, the attorneys general of Missouri and Louisiana, along with a number of private plaintiffs, filed a lawsuit in the U.S. District Court for the Western District of Louisiana alleging that federal government officials violated the First Amendment by “coercing” or “significantly encouraging” social media companies to remove or demote content from their platforms. Plaintiffs contend that federal officials specifically targeted conservative-leaning speech across a range of topics, including the origin of the COVID-19 pandemic, the efficacy of masks and vaccines, the security of voting by mail, the integrity of the 2020 presidential election, and more.
On July 4, 2023, the district court judge issued a preliminary injunction prohibiting the defendants and anyone “acting in concert with them” from communicating with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” It also prohibited the defendants from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” non-government actors for these purposes.
Along with the Lawyers’ Committee for Civil Rights under Law and Common Cause, the Brennan Center filed an amicus brief in the Fifth Circuit Court of Appeals opposing the preliminary injunction and arguing that the decision should be vacated. The brief explained that information sharing between social media companies, government officials, and other relevant stakeholders, including amici, is critical to ensuring the integrity of elections and protecting the voting rights of all Americans. Amici argued that the district court’s injunction violated the First Amendment rights of amici and other civil society organizations by restricting their ability to speak freely with government officials about election disinformation and to petition the government for redress of grievances. In addition, because the scope of the injunction was overbroad and unclear, amici argued that the ruling would chill organizations and government actors from coordinating on important election integrity work.
The Fifth Circuit ultimately vacated much of the district court’s injunction but concluded that certain government agencies violated the First Amendment by being “significantly entangled” in platforms’ moderation decisions. On October 20, 2023, the Supreme Court granted the federal government’s request for a stay of the injunction, temporarily lifting the limitations placed on communications between the government and social media companies. At the same time, the Court also granted certiorari in the case.
The Brennan Center filed an amicus brief with the Supreme Court on behalf of state and local election officials in support of neither party. The brief explains why having accurate information about elections is critical to American democracy and how the proliferation of false information through social media threatens elections and election officials. The brief further argues that, regardless of how the Court rules, it should be careful not to adopt a rule that prevents or chills communications between social media companies and local, state, and federal government officials. Election officials’ efforts to ensure that voters have accurate information about elections and to combat the spread of falsehoods about the election process are essential to preserving democracy.
