Amicus Curiae Brief — Vivek H. Murthy, Surgeon General, et al., Petitioners v. Missouri, et al.

No. 23-411

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------VIVEK H. MURTHY, Surgeon General, et al.,

Petitioners,

v.

MISSOURI, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF AMICUS CURIAE OF FLOOR64, INC.

D/B/A THE COPIA INSTITUTE

IN SUPPORT OF NEITHER PARTY

---------------------------------♦--------------------------------CATHERINE R. GELLIS, ESQ.

Counsel of Record

3020 Bridgeway #247

Sausalito, CA 94965

202-642-2849

cathy@cgcounsel.com

December 21, 2023

================================================================================================================

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF ARGUMENT ..............................

4

ARGUMENT ........................................................

5

I.

II.

The injunction violates the First Amendment ...........................................................

5

A. The injunction violates the First

Amendment right to petition ..............

6

B. The injunction violates the First

Amendment right to free expression.....

9

Granting standing to the state litigants

allows state actors to use the courts to

violate the First Amendment .................... 16

CONCLUSION..................................................... 21

ii

TABLE OF AUTHORITIES

Page

CASES

303 Creative LLC v. Elenis, 143 S. Ct. 2298

(2023) .......................................................................20

Backpage.com, LLC v. Dart, 807 F.3d 229 (7th

Cir. 2015) .................................................................12

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)...........16

Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.

2488 (2011) ................................................................9

California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) ......................................6

Manhattan Cmty. Access Corp. v. Halleck, 139

S. Ct. 1921 (2019) ....................................................15

McDonald v. Smith, 472 U.S. 479 (1985) .....................6

Missouri v. Biden, 83 F.4th 350 (5th Cir. 2023) ...... 6-8,

.................................................... 11-13, 15, 17, 19, 20

Thomas v. Collins, 323 U.S. 516 (1945) ........................6

STATUTES

47 U.S.C. § 230(c) ........................................................16

47 U.S.C. § 230(e)(3)....................................................19

iii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

1 Annals of Cong. 738 (1789) ........................................6

Brief Amicus Curiae of Bluesky, M. Chris Riley,

and Floor64, Inc. d/b/a the Copia Institute,

NetChoice et al. v. Paxton (No. 22-555) .....................9

Brief Amicus Curiae of the Copia Institute,

Andy Warhol Foundation for the Visual Arts v.

Goldsmith, 143 S. Ct. 1258 (2023) ............................3

Brief Amicus Curiae of the Copia Institute et

al., Gonzalez v. Google, 143 S. Ct. 1191 (2023)

(No. 21-1333) ...........................................................13

Eli Rosenberg, Facebook blocked many gaythemed ads as part of its new advertising policy,

angering LGBT groups, WASHINGTON POST

(Oct. 3, 2018), https://www.washingtonpost.com/

technology/2018/10/03/facebook-blocked-manygay-themed-ads-part-its-new-advertising-policyangering-lgbt-groups/ ............................................... 18

Joseph Menn et al., State Dept. cancels Facebook meetings after judge’s ‘censorship’ ruling,

WASHINGTON POST (Jul. 5, 2023), https://www.

washingtonpost.com/technology/2023/07/05/

missouri-biden-judge-censorship-ruling-analysis/ ........7

Kashmir Hill, An Internet Veteran’s Guide to

Not Being Scared of Technology, NEW YORK

TIMES (Jul. 29, 2023), https://www.nytimes.com/

2023/07/29/technology/mike-masnick-techdirtinternet-future.html ...................................................2

iv

TABLE OF AUTHORITIES – Continued

Page

Mike Masnick, 5th Circuit Puts A Hold On

Louisiana Court’s Injunction Barring Gov’t

From Talking To Companies, After District

Court Refuses To, TECHDIRT (Jul. 14, 2023),

https://www.techdirt.com/2023/07/14/5th-circuitputs-a-hold-on-louisiana-courts-injunctionbarring-govt-from-talking-to-companies-afterdistrict-court-refuses-to/ .........................................12

Mike Masnick, As White House Says It’s ‘Reviewing 230’, Biden Admits His Comments About

Facebook Were Misinformation, TECHDIRT

(Jul. 21, 2021), https://www.techdirt.com/2021/

07/21/as-white-house-says-reviewing-230-bidenadmits-his-comments-about-facebook-weremisinformation/ .......................................................14

Mike Masnick, No, The White House Isn’t Colluding With Facebook To Silence Dissent; But It

Sure Could Have Handled Things Better,

TECHDIRT (Jul. 16, 2021), https://www.techdirt.

com/2021/07/16/no-white-house-isnt-colludingwith-facebook-to-silence-dissent-it-sure-couldhave-handled-things-better/ ...................................12

Naomi Nix and Cat Zakrzewski, U.S. stops helping Big Tech spot foreign meddling amid GOP

legal threats, WASHINGTON POST (Nov. 30, 2023),

https://www.washingtonpost.com/technology/

2023/11/30/biden-foreign-disinformation-socialmedia-election-interference/ .....................................7

https://en.wikipedia.org/wiki/Moderator_Mayhem ......... 3

1

INTEREST OF AMICUS CURIAE1

This is a case that complains of undue pressure

having been placed on Internet platforms by state actors seeking to distort platforms’ moderation decisions

and thus affect what user expression could appear

online. Yet while the interests of Internet platforms

have been plenty presumed, as neither plaintiffs nor

defendants nor intervenors, nowhere in the litigation

have they been represented. This litigation is largely a

tug-of-war between state actors – the Petitioners, the

state Respondents, and the courts – arguing over

which one gets to decide how these platform providers

will be allowed to decide what expression to allow on

their services. But this incursion on the First Amendment rights of platforms is happening largely in the

platforms’ absence, even though the result of the litigation will so directly affect them and others like them.

Someone needs to speak for those affected interests

and against the severe Constitutional injury they are

all on the verge of incurring if the injunctive remedy

endorsed by the Court of Appeals for the Fifth Circuit

is allowed to go into effect.

Amicus Copia Institute accordingly submits this

brief to address that injury, which will be felt far

1

No counsel for any party authored this brief in whole or

in part. Amicus and its counsel authored this brief in its entirety.

No person or entity other than amicus and its counsel made a

monetary contribution intended to fund the preparation or submission of this brief.

2

beyond the parties themselves.2 The injunction at issue

is one that strikes at multiple rights protected by the

First Amendment and impacts all who depend on

them, including amicus Copia Institute and any others

similarly situated as either providers of platform services, users of platform services, or simply anyone else

wishing to be able to freely interact with their own government, which this injunction additionally imperils.

The Copia Institute itself is the think tank arm of

Floor64, Inc., the privately-held small business behind

Techdirt.com (“Techdirt”), an online publication that

has chronicled technology law and policy for 25

years.3 In this time Techdirt has published more than

70,000 articles regarding subjects such as freedom of

2

The brief supports neither party in part because neither

party is adequately equipped to address the constitutional injury

to others that looms if the injunction is upheld. Although Petitioners and amicus Copia Institute both seek to have it nullified, the

Petitioners argue primarily for how the injunction affects the

interests of the executive branch of the federal government,

whereas the Copia Institute argues instead how it affects the

public, including platform-providing members of the public, such

as itself. Furthermore, to the extent that any government entity

has already, or may in the future, exceed its constitutional bounds

to pressure how others exercise their expressive rights, the Copia

Institute agrees with Respondents that there should be a remedy

for that overstepping. But, for the reasons explained herein, no

suitable remedy would look anything like the injunction the Fifth

Circuit has allowed.

3

Its founder and owner Michael Masnick was recently profiled in the New York Times. Kashmir Hill, An Internet Veteran’s

Guide to Not Being Scared of Technology, NEW YORK TIMES (Jul.

29, 2023), https://www.nytimes.com/2023/07/29/technology/mikemasnick-techdirt-internet-future.html.

3

expression and platform moderation – issues that are

at the heart of this matter – as well as other topics including cybersecurity, competition, and the impact of

technology on civil liberties. The site often receives

more than a million page views per month and is itself

a platform provider, soliciting what has amounted to

nearly two million reader comments, which is a form of

user expression that advances discovery and discussion around these topics. The company then uses other

Internet platforms of various types, including those at

issue in this case, to promote its own expression and

engage with its audiences.

As a think tank the Copia Institute also produces

evidence-driven white papers examining the nuance

and assumptions underpinning technology policy. Then,

armed with its insight, it regularly submits other advocacy instruments such as amicus briefs4 and regulatory comments, all of which are designed to educate

lawmakers, courts, and other regulators – as well as

innovators, entrepreneurs, and the public – on these

subjects, with the goal of influencing good policy that

promotes and sustains innovation and expression. Complementing those efforts the Copia Institute additionally produces interactive games such as “Moderator

Mayhem” and “Trust and Safety Tycoon,”5 which allows

players to experience the difficulties of effective platform

moderation given various competing pressures that

4

See, e.g., Brief Amicus Curiae of the Copia Institute, Andy

Warhol Foundation for the Visual Arts v. Goldsmith, 143 S. Ct.

1258 (2023) (No. 21-869).

5

See, e.g., https://en.wikipedia.org/wiki/Moderator_Mayhem.

4

typically bear on the site management experience, including the sort at issue in this case.

As an enterprise whose business is built around

engaging in expressive conduct, the behavior by both

Petitioners and Respondents is highly relevant to its

own endeavors. But most at issue is how its expressive

interests stand to be harmed by the injunction because

even if aimed at the executive branch of the federal

government, and even if intended to vindicate online

user expression, it nevertheless directly attacks the expressive freedoms that the Copia Institute and others,

including other platform providers, depend on. The Copia Institute therefore submits this brief amicus curiae

wearing two hats: as a longtime commenter on the issues at the heart of the underlying litigation, and as

an example of those whose own First Amendment

rights are threatened by this injunction and all that

would follow if this one were permitted.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The injunction at issue in this case reaches far beyond the Petitioners and Respondents. It reaches anyone offering any sort of platform service – and,

consequently, all who use them – because it does more

than just gag Article II officials; it cuts platform providers off from their own government, and in a way

that directly implicates their own expressive rights

and their right to petition the government. It is a facially unconstitutional attack on multiple rights protected by the First Amendment, and one that exposes

5

platforms, and the users who depend on them to facilitate their expression, to the control of any state that

wishes to control what expression is allowed online.

Amicus Copia Institute files this brief because, despite

the enormous impact on the rights of platform providers the injunction threatens to have, none have been

party to this litigation, even though, if the injunction

is allowed to stand, it is their rights that will fall.

---------------------------------♦---------------------------------

ARGUMENT

I.

The injunction violates the First Amendment.

Both amicus Copia Institute and the Petitioners

ask this Court for the same relief: the dissolution of

the injunction. The Copia Institute files, however, not

to vindicate the government’s interest in speaking but

to vindicate the interests of those the government

would speak with. These interests may at times overlap and align, but they are not the same, particularly

on occasions where government speech does what the

Respondents allege and cross the line into unconstitutionality. The Copia Institute files this brief amicus

curiae because the remedy for such constitutional incursions by the government cannot be the further incursion on others’ constitutional rights to speak,

including to it.

6

A. The injunction violates the First Amendment right to petition.

The First Amendment ties together several overlapping rights. McDonald v. Smith, 472 U.S. 479, 490

(1985) (Brennan, J., concurring). Though not identical,

they are inseparable. Id. (citing Thomas v. Collins, 323

U.S. 516, 530 (1945)). They include, along with the

rights of speech, press, and assembly, the right to petition the government as “an assurance of a particular

freedom of expression.” Id. at 482. It is a right that includes the right to petition all branches of government,

including administrative agencies. California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510

(1972). As “interrelated components of the public’s exercise of its sovereign authority,” McDonald, 472 U.S.

at 489-90 (citing Thomas, 323 U.S. at 530), these “cognate” rights underpin the republican form of government. Id. at 482. “[T]he people may therefore publicly

address their representatives, may privately advise

them, or declare their sentiments by petition to the

whole body; in all these ways they may communicate

their will.” Id. (citing 1 Annals of Cong. 738 (1789)).

This injunction directly obstructs the public’s

ability to express its will to its government officials by

limiting the latter’s ability to participate in the conversations. Missouri v. Biden, 83 F.4th 350, 396-98 (5th

Cir. 2023). As we have already seen in the wake of the

initial injunctive order, any injunction silencing those

officials inherently also silences anyone who might

7

have liked to talk to them. Meetings got canceled,6 and

information about hazards stopped getting shared

with the platforms that needed to know.7 Thus not only

is the injunction unconstitutional, interfering with

representative governance to prevent the public from

talking to their representatives, but the problems it

creates are also practical for those who would like to

be able to speak with the government, including its executive branch officials, and now cannot.

In the case of Internet platform providers, in its

analysis the Fifth Circuit appears to have presumed

that they would have no reason to want to engage with

their government as they navigated content moderation issues. It cited an extensive laundry list of examples of communications between platforms and various

executive branch agencies. See, e.g., id. at 361-63. But

then it persistently concluded, without evidence, that

the communications occurred entirely on the agencies’

own initiative and not at the invitation of the platforms themselves in furtherance of their own interest

in engaging with these officials, or their own volitional

desire to act in accordance with their input. See, e.g.,

6

Joseph Menn et al., State Dept. cancels Facebook meetings

after judge’s ‘censorship’ ruling, WASHINGTON POST (Jul. 5, 2023),

https://www.washingtonpost.com/technology/2023/07/05/missouribiden-judge-censorship-ruling-analysis/.

7

Naomi Nix and Cat Zakrzewski, U.S. stops helping Big

Tech spot foreign meddling amid GOP legal threats, WASHINGTON

POST (Nov. 30, 2023), https://www.washingtonpost.com/technology/

2023/11/30/biden-foreign-disinformation-social-media-electioninterference/.

8

id. at 389.8 The court assumed officials were “entangled” with platforms, instead of freely welcomed as

platforms believed would benefit them. Id. at 387.

But such a presumption cannot withstand even

the most superficial scrutiny. For example, if a platform were trying to figure out an effective policy on a

topic like vaccine information, it would be logical for

the platform to want to tap into the expertise of a major federal agency tasked with studying vaccine efficacy. Or if it wanted to secure its systems against

attacks by hackers, it would make sense for it to consult with the agency charged with protecting the nation against cyberattacks. But with this injunction,

neither agency is free to take the call, lest it convey an

opinion about the subject matter that the platform is

seeking to have it convey. See Petitioners Br. 48-49.

Which means that platforms themselves are functionally barred from choosing to engage with government

officials, even though such engagement should be protected by the petitioning right.

Because even if the public may still retain their

literal right to petition the government for a redress of

grievances in the wake of the injunction, the petitioning right itself historically has not been preconditioned

8

In the example this citation refers to the court concluded

that when the platforms reacted to the FBI warning about “statesponsored actors,” and moderated accordingly, this moderation

evinced that they perceived the FBI as a threat. The court seems

to overlook the possibility that the platforms perceived the

“state-sponsored actors” as the threat their moderation was reacting to.

9

on only contentious formality. See Borough of Duryea,

Pa. v. Guarnieri, 131 S. Ct. 2488, 2495 (2011) (“The

right to petition allows citizens to express their ideas,

hopes, and concerns to their government and their

elected representatives[.]”). What this injunction cuts

off is dialog between the public and its government,

which is enough to offend that right. In the case of platform providers, no matter how much it would serve

their own expressive needs to tap governmental expertise, see discussion infra Section I.B, they must now do

without this input, even if the resulting absence of information causes harm to the platforms or their users.

B. The injunction violates the First Amendment right to free expression.

The injunction does not just interfere with the

right of platform providers to express themselves to its

government. It also interferes with their right of free

expression more generally by impinging on their ability to make the expressive decisions needed to operate

their platforms. The Constitutional importance of preserving platform providers’ expressive discretion in

choosing what user expression to facilitate is currently

before this Court in NetChoice et al. v. Paxton, No. 22555, and Moody v. NetChoice et al., No. 22-277. As amicus Copia Institute explained in its brief amicus curiae

in those cases,9 preserving that right is critical for

9

Brief Amicus Curiae of Bluesky, M. Chris Riley, and

Floor64, Inc. d/b/a the Copia Institute, NetChoice et al. v. Paxton

(No. 22-555). The NetChoice amicus brief cited here is on behalf

of administrators of platforms other than the ones implicated by

10

helping users speak online more, which is a declared

goal this lawsuit was brought to advance. When that

right of the platforms is impinged, it will only result in

users being able to speak online less, because taking

away the freedom platforms need to facilitate user expression will only take away their ability to facilitate

it at all.

The case at hand is illustrative of what it looks

like when that right is attacked because the upshot to

the decision is that the Fifth Circuit has now made

off-limits any moderation decision by platforms that

might happen to align with what the government prefers the moderation to be like if the executive branch

had at all communicated that preference. In other words,

according to the Fifth Circuit’s reasoning, once the government asked for the platforms to do something, the

platforms effectively lost the ability to do it, no matter

how much they might have independently wanted to.

The logic of the decision is troubling, but the implications are even worse. When acting in accordance

with an expressed government preference can be presumed to reflect an impermissible constitutional overstep by the government, the decisions that a platform

can make are inherently constrained. Platforms are

now “free” to only make moderation decisions that are

different from what the government wants, or ones

this instant case. In particular they are smaller platforms without

the staff support that the ones at issue here have to moderate

their services, yet with no less a need to. But this injunction would

impact them as much as it does the platforms involved with this

case and consequently affect their rights and ability to moderate

their own services as they need to.

11

that were made in an informational vacuum where the

platform has never spoken to the government about

them at all, even if that government input would have

been valuable or necessary for making those decisions.

See discussion supra I.A.

It is a judicial result that appears predicated on

an infantilizing view of how platforms made decisions

while in contact with government officials. It is one

that presumes that platforms lacked the power to decide for themselves how to moderate their platforms,

as if the government, by speaking to them, somehow

became the final authority for the decisions the platforms were making for themselves. See, e.g., Missouri,

83 F.4th at 383-84. See also id. at 361, 363, and 387

(assuming the platforms “capitulated” rather than chose

to moderate how it did). The court imagines,10 despite

evidence to the contrary,11 that none of the platforms

would have moderated as they did “but for” input by

the Petitioners. The court cites a litany of government

communications, and the moderation decisions that

followed, as if the potential connection between them

inherently revealed a constitutional problem. Id. at 36163. But there was no problem, because each decision

described is one that the platform should have been

Constitutionally free to make for itself, regardless of

whether anyone in government favored the decision too.

10

See, e.g., Missouri, 83 F.4th at 361 (“The platforms apparently yielded.”).

11

See, e.g., Missouri, 83 F.4th at 371 (“To be sure, there were

instances where the social-media platforms declined to remove

content that the officials had identified for censorship.”).

12

It may be true that some of the communications

by members of the executive branch were beyond the

pale in terms of their self-entitled pushiness and unfounded expectation that they had any right to demand any platform moderate in any particular way.

See, e.g., id. at 361. That certain officials may have

acted as though they did is inexcusable. Amicus Copia

Institute has been critical of government attempts, including those by Petitioners,12 to try to shape online expression by pressuring platforms.13 Furthermore, the

sort of unconstitutional coercive threat Respondents

complain about can happen, and when it does it is right

for the courts to step in. See, e.g., Backpage.com, LLC v.

Dart, 807 F.3d 229 (7th Cir. 2015). But to the extent

that such communications equate to a constitutional

injury it is because platforms have the right of free

expression enabling them to moderate as they choose.

An injunction that itself attacks that right is incapable

12

See, e.g., Mike Masnick, No, The White House Isn’t Colluding

With Facebook To Silence Dissent; But It Sure Could Have Handled Things Better, TECHDIRT (Jul. 16, 2021), https://www.techdirt.

com/2021/07/16/no-white-house-isnt-colluding-with-facebook-tosilence-dissent-it-sure-could-have-handled-things-better/.

13

On the other hand, the context of the communications

objected to by the Fifth Circuit seems to have largely been

omitted from the analysis, with the absence inaccurately painting a greater appearance of impropriety than may actually be

warranted. See, e.g., Mike Masnick, 5th Circuit Puts A Hold On

Louisiana Court’s Injunction Barring Gov’t From Talking To

Companies, After District Court Refuses To, TECHDIRT (Jul. 14,

2023), https://www.techdirt.com/2023/07/14/5th-circuit-puts-ahold-on-louisiana-courts-injunction-barring-govt-from-talking-tocompanies-after-district-court-refuses-to/.

13

of providing any sort of remedy for that injury and instead only makes it worse.

And, in this case, no such injury was incurred.

Even the worst of Petitioners’ communications were

ultimately all sound and fury signifying no actual coercion. Contrary to the Fifth Circuit’s assessment, the

record does not support a finding that there was any

sort of punitive “or else” conveyed by executive branch

officials if the platform providers ignored their input,

directly or otherwise. See Missouri, 83 F.4th at 385-86.

The court’s emphasis on the inherent authority of the

Petitioners as an implicit means of compulsion, see id.

at 384-85, would also mean that no platform could ever

consult with Petitioners without any subsequent action

taken by the platform being tainted by the association,

which would thus eviscerate the platform’s petitioning

right by making it impossible to ever have those conversations. See id. at 390 (discounting that the platforms may have wanted to incorporate the CDC’s advice

into its moderation decisions and considering those decisions having been “marred” by the agency’s input).

Even the threats to pursue changes to Section 230

cited as an example of improper coercion fail to amount

to one. See, e.g., id. at 364. While pursuing those

changes would have been a terrible policy to lean into,

and indeed harmful to the platforms if they were implemented,14 it was still not an actual, coercive threat.

For one thing, the Petitioners were already lobbying to

14

See Brief Amicus Curiae of the Copia Institute et al.,

Gonzalez v. Google, 143 S. Ct. 1191 (2023) (No. 21-1333).

14

gut Section 230 for myriad other reasons.15 Secondly,

the Petitioners did not actually have the ability to

change the law because the power needed to change it

is legislative, which is not a power that the executive

branch is itself endowed with. Furthermore, it is

hardly a threat for an elected official to say that they

are going to effectuate a policy they believe their voters

want – in a democracy it is what one would normally

expect elected leaders to do.

The Fifth Circuit erred in its assumption that

platforms, when faced with communications with Petitioners, which the platforms themselves may have welcomed and solicited, all wilted in the face of suggestions

by the Petitioners that they were somehow powerless

to resist. But the platforms were not powerless, at

least not then. With this injunction, however, they are

now. What the Fifth Circuit has done is swap out one

state actor, the Petitioners, whose coercive power was

greatly overestimated, with another state actor, the

courts, whose coercive power is being greatly underestimated. Because now, with the injunction, the courts

can even more heavily place a thumb on the scale of

possible moderation choices that a platform can make

than the Petitioners ever did.

The resulting problems with the injunction are not

just constitutional but practical. One concern on the

15

See, e.g., Mike Masnick, As White House Says It’s ‘Reviewing 230’, Biden Admits His Comments About Facebook Were Misinformation, TECHDIRT (Jul. 21, 2021), https://www.techdirt.com/

2021/07/21/as-white-house-says-reviewing-230-biden-admits-hiscomments-about-facebook-were-misinformation/.

15

latter front is that the Fifth Circuit has now essentially

published something of a roadmap for a truly conniving government official to control what expression may

appear online. By having sabotaged the ability of a

platform provider to decide for themselves how to facilitate user expression in the face of government input, all the nefarious government official needs to do

to get online expression to be moderated as it wishes is

demand platforms do the opposite of what it wants and

consequently make that decision off-limits.

But the constitutional implications are themselves significant, not just in the effect of the injunction, should it go into force, but in how the decision

itself represents its own attack on platforms’ First

Amendment rights, this time by the courts themselves.

The entire point of the case was to challenge the decisions the platforms had made about what user content

to facilitate. As the Fifth Circuit acknowledged, it was

not a challenge that could be brought against the platforms directly by the plaintiffs. Id. at 373 (citing Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,

1930 (2019)). But even though it wasn’t a challenge

brought against the platforms directly, id. at 370, the

court still found a way to make the platforms’ decisions

subject to government review. Id. at 369. Only this time

the review was done by the courts themselves, Monday-morning quarterbacking how the platforms had

moderated, in order to decide that the decisions the

platforms had made simply could not have been ones

it was possible for them to have validly made. In so

concluding the Fifth Circuit has now produced an

16

injunction that makes their ability to freely make further moderation decisions as they would choose impossible.

II.

Granting standing to the state litigants

allows state actors to use the courts to violate the First Amendment.

The theory of harm pressed by the individual Respondents is that because Petitioners allegedly impinged on the First Amendment rights of the platforms

they wanted to use, it amounted to an impingement of

their own First Amendment rights to speak. Their allegations are not that the platforms themselves violated their rights – after all, the platforms were not

named defendants, nor could they be because their

ability to make moderation decisions is ordinarily protected by the First Amendment, as well as Section 230.

See 47 U.S.C. § 230(c); Batzel v. Smith, 333 F.3d 1018,

1028-29 (9th Cir. 2003). To route around those constitutional and statutory obstacles the individual plaintiffs instead claimed that the Petitioners had coopted

the platforms’ editorial independence in order to use

the platforms as vehicles for Petitioners to violate

these users’ speech rights.

As explained above, this theory is unavailing, at

minimum because the platforms’ rights were not actually violated by the Petitioners, which means that the

individual Respondents’ rights were not either. But

they were not the only plaintiffs in this case. Respondents also include two state plaintiffs, whose theory of

17

harm to them as states is even more constitutionally

insidious. The lower courts erred by crediting it and

finding any sort of standing to advance their claims.

Missouri, 83 F.4th at 371. And the consequence of validating these dubious theories of constitutional harm

is now actual constitutional harm arising from the

Fifth Circuit blessing the very sort of state interference in expressive rights that the First Amendment

forbids.

The intrusion by Missouri and Louisiana on platforms’ expressive rights is not a subtle one. Its litigation may superficially appear as a dispute between

state and federal authority, but at its core it is really a

baldfaced attack on private rights of free expression.

They brought their claims because they do not like how

the platforms had exercised those rights. See generally

id. at 371-73. The platforms chose to moderate off their

systems expression that the states wanted to favor,

and this lawsuit is an effort by a state actor to challenge the platforms’ constitutionally-protected expressive choice to do so. That Missouri and Louisiana are

not, and constitutionally cannot, challenge the platforms directly themselves is functionally immaterial.

Their asking of another state actor – the courts – to

force the platforms to moderate how the states prefer

is as constitutionally suspect as direct action. It is a

naked attempt to control what expression is favored

online, and one that requires violating the platforms’

rights to achieve it. The Fifth Circuit should have rebuffed the states’ attempted assault on the platforms’

First Amendment rights, not enabled it.

18

By nevertheless finding that the states of Louisiana and Missouri had a judicially cognizable interest

in being able to force platforms to facilitate certain

views online the Fifth Circuit has essentially given

these states veto power over what views platforms can

favor, despite the First Amendment’s clear prohibition

against such meddling in the exercise of free expression. But it has not just given it to these states; it has

given it to all states, including those who would have

their own potentially conflicting preferences for what

speech to favor. By finding standing for Louisiana and

Missouri the Fifth Circuit has created a situation

where states will now be competing for the editorial

souls of platforms. While this case complains of expression being removed that happens to conflict with the

values of the current presidential administration, the

injunction is not limited to such situations, nor even

this administration. As it is, platforms already remove

expression that may be disfavored by other administrations, yet favored by states with different political

priorities than the plaintiff states here.16 With this decision platforms have become spoils for states to fight

over, using the courts as the battleground, instead of

remaining private actors capable of the independent

editorial independence the First Amendment was supposed to leave them free to exercise.

16

See, e.g., Eli Rosenberg, Facebook blocked many gaythemed ads as part of its new advertising policy, angering LGBT

groups, WASHINGTON POST (Oct. 3, 2018), https://www.washingtonpost.com/technology/2018/10/03/facebook-blocked-many-gaythemed-ads-part-its-new-advertising-policy-angering-lgbt-groups/.

19

It is also editorial independence that Section 230

is supposed to protect. Section 230 not only shields

moderation decisions from litigation challenge, but it

pointedly forbids states from interfering with that immunity. 47 U.S.C. § 230(e)(3). Allowing state plaintiffs

to bring this action, challenging those moderation decisions, directly contravenes the policy codified by Congress. In doing so it also directly invites the exact same

conflict that Congress had anticipated and sought to

avoid, with individual states seeking to regulate Internet platforms according to their own individual agendas born from their own individual political priorities.

The statute’s preemption clause should have ensured

states sat on the sidelines when it came to regulating

the Internet via editorial pressure on platforms. The

Fifth Circuit erred in allowing, via the collateral effects

of litigation, states to do what they could not do directly.

That the Fifth Circuit framed the states’ claims as

seeking to vindicate their own speech interests only

further impugns its decision. See Missouri, 83 F.4th at

366 (“Accounts run by state officials were often subject

to censorship, too.”); id. at 372 (“These acts of censorship confer standing for substantially the same reasons as those discussed for the Individual Plaintiffs.”).

Validating their complaints endorses the alarming

idea that the states had the right to unilaterally coopt the services of a private party in order to speak,

despite the significant constitutional concerns raised

by such flexing of state power.17 Presuming such an

17

Similar constitutional concerns pervade the states’ claims

that this lawsuit was about vindicating its own citizens’ right to

petition. As argued above, the public does of course have that

20

entitlement in order to permit the states’ claims also

flouts the Constitution’s prohibition on compelled

speech because it would mean that platforms must allow states to speak through them, even if it is in a way

that is inconsistent with their own editorial prerogative. See 303 Creative LLC v. Elenis, 143 S. Ct. 2298,

2322 (2023). While the states may have a right to speak

on their own behalf, Missouri, F.4th at 372, as this

Court has found it does not follow that they have the

right to force anyone else to help them do that speaking.

Allowing any of the Respondent plaintiffs to use

the courts to challenge platforms’ protected decisions

is constitutionally dubious on its face. But to allow the

state plaintiffs to do so presents its own constitutional

horrors. An injunction built to vindicate those state

plaintiffs’ interests is inherently suspect and must be

dissolved.

---------------------------------♦---------------------------------

right. See discussion supra I.A. But the right of the public to express itself to the government does not also include the right to

conscript another private party to help it do it. Nor does it grant

anyone in the government the power to force a private party to

help facilitate a petitioning right any more than it allows the

government to force a private party to facilitate any expression.

The Fifth Circuit therefore erred in allowing the states to use

such a claim, ostensibly to vindicate the petitioning right of some,

as a vector for extinguishing the same right of the platforms.

21

CONCLUSION

For the forgoing reasons, this Court should find

the injunction unconstitutional and dissolve it.

Respectfully submitted,

CATHERINE R. GELLIS, ESQ.

Counsel of Record

3020 Bridgeway #247

Sausalito, CA 94965

202-642-2849

cathy@cgcounsel.com

Counsel for Amicus Curiae

December 21, 2023