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

Supreme Court briefDec 22, 2023

Ask Donna

What actually matters in this document.

Text

No. 23-411

IN THE

Supreme Court of the United States

————

VIVEK H. MURTHY, U.S. SURGEON GENERAL, ET AL.,

Petitioners,

MISSOURI, ET AL.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW,

COMMON CAUSE, AND LEADERSHIP

CONFERENCE ON CIVIL AND HUMAN

RIGHTS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————

DAMON HEWITT*

JON GREENBAUM

EZRA ROSENBERG

DAVID BRODY

Counsel of Record

POOJA CHAUDHURI

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K Street, N.W., Ste. 900

Washington, DC 20005

(202) 662-8600

dbrody@lawyerscommittee.org

*Admitted in Pennsylvania only;

Practice limited to matters before

federal courts.

Counsel for Amici Curiae

December 22, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

iii

INTERESTS OF AMICI CURIAE ......................

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

FACTUAL BACKGROUND ................................

A. Election Mis- and Disinformation on

Social Media.........................................

B. Intimidation of Election Officials .......

C. The Roles of Platforms, Government,

and Civil Society in Protecting Voting

Rights Online .......................................

D. The Role of the Election Protection

Coalition ...............................................

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

THE COURT SHOULD NOT REINSTATE

THE DISTRICT COURT’S INJUNCTION BECAUSE IT WOULD VIOLATE

THE FIRST AMENDMENT RIGHTS OF

AMICI ........................................................

A. The District Court’s Injunction Was a

Prior Restraint on Amici’s Free

Speech ..................................................

B. The District Court’s Injunction Infringed on Amici’s Right to Petition

the Government ...................................

C. The District Court’s Injunction Failed

Strict Scrutiny .....................................

(i)

TABLE OF CONTENTS—Continued

Page

D. The District Court’s Injunction Inhibited Amici’s Ability to Discuss

Election Protection Matters with the

Government .........................................

THE FIFTH CIRCUIT’S INJUNCTION

SHOULD BE VACATED BECAUSE IT

IS VAGUE, OVERBROAD, AND WILL

CHILL

EFFORTS TO PROTECT

VOTING RIGHTS .....................................

A. The Fifth Circuit’s Injunction Is

Vague in Violation of Rule 65 .............

B. The Fifth Circuit’s Injunction Is

Impermissibly Overbroad ...................

CONCLUSION ....................................................

II.

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Alexander v. United States,

509 U.S. 544 (1993) ...................................

Arizona v. Inter-Tribal Council of Ariz., Inc.,

570 U.S. 1 (2013) .......................................

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ..................................... 16-17

BE & K Constr. Co. v. NLRB,

536 U.S. 516 (2002) ...................................

Bernstein v. Sims,

643 F. Supp. 3d 578

(E.D.N.C. Dec. 1, 2022) .............................

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ...................................

Califano v. Yamasaki,

442 U.S. 682 (1979) ...................................

Carroll v. President & Comm’rs of

Princess Anne,

393 U.S. 175 (1968) ...................................

Counterman v. Colorado,

143 S. Ct. 2106 (2023) ...............................

Dumpson v. Ade,

No. 18-1011, 2019 WL 3767171

(D.D.C. Aug. 9, 2019) ................................

Fed. Election Comm’n v.

Wis. Right to Life, Inc.,

551 U.S. 449 (2007) ...................................

Gill v. Whitford,

138 S. Ct. 1916 (2018) ...............................

TABLE OF AUTHORITIES—Continued

Page(s)

Gonzalez v. Google LLC,

143 S. Ct. 1191 (2023) ...............................

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) ...............................

Metro. Opera Ass’n, Inc. v. Local 100, Hotel

Emps. & Rest. Emps. Int’l Union, 239

F.3d 172 (2d Cir. 2001) ............................. 21, 22

Nat’l Coal. on Black Civic Participation v.

Wohl,

— F. Supp. 3d —, 2023 WL 2403012

(S.D.N.Y. Mar. 8, 2023) ........................... 1-2, 21

Org. for a Better Austin v. Keefe,

402 U.S. 415 (1971) ...................................

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ............................. 17, 19, 20

Schmidt v. Lessard,

414 U.S. 473 (1974) ...................................

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ...................................

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ...................................

United States v. Texas,

599 U.S. 670 (2023) ...................................

Wayte v. United States,

470 U.S. 598 (1985) ...................................

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ...................................

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. amend. I .................... 3, 18, 21, 22, 28

STATUTES

42 U.S.C. § 1985(3) .......................................

52 U.S.C.§ 10308(d)–(e) ................................

RULES

Fed. R. Civ. P. 65 .......................................... 25, 29

Fed. R. Civ. P. 65(d)......................................

COURT FILINGS

Amicus Br. of Brennan Ctr. for Just., Doc.

105-1, Ayyadurai v. Galvin, No. 1:20- cv11889 (D. Mass. May 19, 2021) ................

Forfeiture Order, FCC 23-44, In re Burkman,

No. EB-TCD-21-00032652 (June 6, 2023)....

OTHER AUTHORITIES

About the YouTube Priority Flagger Program, YouTube Help, https://support.goo

gle.com/youtube/answer/7554338?hl=en

(as visited Dec. 21, 2023) ..........................

Blake Peterson, ICE, Dispelling Rumors,

Says It Won’t Patrol Polling Places,

ProPublica (Nov. 2, 2019), https://www.

propublica.org/article/ice-dispelling-rum

ors-says-it-wont-patrol-polling-places (as

visited Dec. 21, 2023) ................................

TABLE OF AUTHORITIES—Continued

Page(s)

Brennan Ctr. for Just., Election Officials

Under Attack: How to Protect Administrators and Safeguard Democracy (June

2021), https://www.brennancenter.org/ou

r-work/policy-solutions/election-officialsunder-attack (as visited Dec. 21, 2023) ....

Brennan Ctr. for Just., Local Election

Officials Survey (June 2021), https://

www.brennancenter.org/our-work/resear

ch-reports/local-election-officials-surveyjune-2021 (as visited Dec. 21, 2023) ........

Brennan Ctr. for Just., Local Election

Officials Survey (Mar. 2022), https://

www.brennancenter.org/our-work/resear

ch-reports/local-election-officials-surveymarch-2022 (as visited Dec. 21, 2023) ....

Brennan Ctr. for Just., Local Election

Officials Survey (Apr. 2023), https://www.

brennancenter.org/our-work/research-rep

orts/local-election-officials-survey-april-20

23 (as visited Dec. 21, 2023) ......................

Bringing Local Context to Our Global

Standards, Meta, https://transparency.

fb.com/policies/improving/bringing-localcontext (Jan. 18, 2023) (as visited Dec. 21,

2023) ..........................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Carnegie Endowment for Int’l Peace, How

Social Media Platforms’ Community

Standards Address Influence Operations

(Apr. 1, 2021), https://carnegieendowmen

t.org/2021/04/01/how-social-media-platfor

ms-community-standards-address-influen

ce-operations-pub-84201 (as visited Dec.

21, 2023)......................................................

11A Charles Allan Wright & Arthur R.

Miller, Federal Practice and Procedure

(3d ed. 2023) ..............................................

CISA, Election Security Rumor vs. Reality,

https://www.cisa.gov/rumor-vs-reality

(as visited Dec. 21, 2023) ..........................

Community Guidelines, TikTok, https://

www.tiktok.com/community-guidelines/

en/overview/ (as visited Dec. 21, 2023) ....

Community Guidelines, YouTube, https://

www.youtube.com/howyoutubeworks/pol

icies/community-guidelines/ (as visited

Dec. 21, 2023) ............................................

David Ingram & Kevin Collier, Big Tech

Met with Govt to Discuss How to Handle

Election Results, NBC News (Aug. 12,

2020), https://www.nbcnews.com/tech/tec

ch-news/big-tech-met-gov-t-discuss-howhandle-election-results-n1236555

(as

visited Dec. 21, 2023) ................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Dep’t of Homeland Sec., Off. of Inspector

Gen., DHS Needs a Unified Strategy to

Counter Disinformation Campaigns (Aug.

10, 2022), https://www.oig.dhs.gov/sites/de

fault/files/assets/2022-08/OIG-22-58-Aug2

2.pdf (as visited Dec. 21, 2023) .................

Election Integrity P’ship, The Long Fuse:

Misinformation and the 2020 Election

(June 15, 2021), https://stacks.stanford.

edu/file/druid:tr171zs0069/EIP-Final-Rep

ort.pdf (as visited Dec. 21, 2023) ...............

Elizabeth Dwoskin & Ellen Nakashima,

Tech Didn’t Spot Russian Interference

During the Last Election. Now It’s Asking

Law Enforcement for Help, Wash. Post

(June 26, 2018), https://www.wash

ingtonpost.com/technology/2018/06/26/tec

h-didnt-spot-russian-meddling-during-las

t-election-now-its-asking-law-enforcemen

t-help/ (as visited Dec. 21, 2023) ...............

Facebook’s Policies for Elections and

Voting: What You Need to Know, Meta,

https://about.fb.com/wp-content/uploads/

2020/12/Facebooks-Policies-for-Electionsand-Voting.pdf (as visited Dec. 21, 2023) ..

TABLE OF AUTHORITIES—Continued

Page(s)

Free Press, Empty Promises: Inside Big

Tech’s Weak Effort to Fight Hate and Lies

in 2022 (Oct. 2022), https://www.free

press.net/sites/default/files/2022-10/emp

ty_promises_inside_big_techs_weak_effo

rt_to_fight_hate_and_lies_in_2022_free_

press_final.pdf (as visited Dec. 21, 2023).

Ian Vandewalker, Digital Disinformation

and Voter Suppression, Brennan Ctr. for

Just. (Sept. 2, 2020), https://www.brenn

ancenter.org/our-work/research-reports/

digital-disinformation-and-vote-suppres

sion (as visited Dec. 21, 2023) ..................

Jerry Iannelli, Far-Right Groups Just Doxxed Elections Supervisors Brenda Snipes

and Susan Bucher, Mia. New Times

(Nov. 14, 2018), https://www.miaminew

times.com/news/broward-countys-brenda

-snipes-was-doxxed-online-10911462 (as

visited Dec. 21, 2023) ................................

Joseph Menn et al., State Dept. Cancels

Facebook

Meetings

After

Judge’s

‘Censorship’ Ruling, Wash. Post (July 5,

2023), https://www.washingtonpost.com/

technology/2023/07/05/missouri-bidenjudge-censorship-ruling-analysis/

(as

visited Dec. 21, 2023) ................................

TABLE OF AUTHORITIES—Continued

Page(s)

Kimmy Yam, Right-Wing Disinformation

Ramps Up on WeChat Ahead of Midterms, Report Finds, NBC News (Oct. 3,

2022), https://www.nbcnews.com/news/asi

an-america/right-wing-disinformation-ra

mps-wechat-ahead-midterms-report-find

s-rcna50539 (as visited Dec. 21, 2023)......

Linda So, Trump-Inspired Death Threats

Are Terrorizing Election Workers, Reuters

(June 11, 2021), https://www.reuters.co

m/investigates/special-report/usa-trumpgeorgia-threats (as visited Dec. 21, 2023) ....

Marina Villeneuve, Justice Department

Details Threats Against Election Workers,

AP (Aug. 3, 2022), https://apnews.com/

article/2022-midterm-elections-violencepresidential-judiciary-5125682e179ac12

34a97756a644e353c (as visited Dec. 21,

2023) ..........................................................

Meta, Facebook’s Civil Rights Audit – Final

Report (July 8, 2020), https://about.fb.

com/wp-content/uploads/2020/07/CivilRights-Audit-Final-Report.pdf (as visited

Dec. 21, 2023) ............................................

Meta’s Third-Party Fact-Checking Program, Meta, https://www.facebook.com/

formedia/mjp/programs/third-partyfact-checking (as visited Dec. 21, 2023) ...

TABLE OF AUTHORITIES—Continued

Page(s)

Olivia Ma, How Google and YouTube Are

Investing in Fact-Checking, Google News

Initiative (Nov. 29, 2022), https://blog.goo

gle/outreach-initiatives/google-news-initi

ative/how-google-and-youtube-are-invest

ing-in-fact-checking/ (as visited Dec. 21,

2023) ..........................................................

Presidential Decision Directive 63 on

Critical Infrastructure Protection: Sector

Coordinators, 63 Fed. Reg. 41804 (Aug. 5,

1998) ..........................................................

Press Release, U.S. Att’ys Off. E.D.N.Y.,

Social Media Influencer Douglass

Mackey Convicted of Election Interference in 2016 Presidential Race (Mar.

31, 2023), https://www.justice.gov/usaoedny/pr/social-media-influencer-douglassmackey-convicted-election-interference2016 (as visited Dec. 21, 2023) ..................

Richard Fausset, ‘It Has to Stop’: Georgia

Election Official Lashes Trump, N.Y.

Times (Dec. 1, 2020), https://www.nytime

s.com/2020/12/01/us/politics/georgia-elec

tion-trump.html (as visited Dec. 21,

2023) ..........................................................

S. Rep. No. 116-290, vol. II (2020), https:/

/www.intelligence.senate.gov/sites/defa

ult/files/documents/Report_Volume2.pdf

(as visited Dec. 21, 2023) ...........................

8, 9

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Statement by Secretary Jeh Johnson on the

Designation of Election Infrastructure as

a Critical Infrastructure Subsector (Jan.

6, 2017), https://www.dhs.gov/news/2017/

01/06/statement-secretary-johnson-desig

nation-election-infrastructure-critical (as

visited Dec. 21, 2023) ................................ 12-13

Sylvia Albert et al., As a Matter of Fact: The

Harms Caused by Election Disinformation Report, Common Cause Educ.

Fund (Oct. 2021), https://www.commonca

use.org/wp-content/uploads/2021/10/CC

_AsaMatterofFact_FINAL_10.27.21.pdf

(as visited Dec. 21, 2023) .......................... 6, 7, 9

Tiffany Hsu, Misinformation Swirls in NonEnglish Languages Ahead of Midterms,

N.Y. Times (Oct. 12, 2022), https://www.

nytimes.com/2022/10/12/business/media/

midterms-foreign-language-misinformat

ion.html (as visited Dec. 21, 2023) ............

INTERESTS OF AMICI CURIAE1

Amici, the Lawyers’ Committee for Civil Rights

Under Law (Lawyers’ Committee), Common Cause,

and Leadership Conference on Civil and Human

Rights (Leadership Conference) are leading members

of Election Protection, a nationwide, nonpartisan

coalition consisting of over 300 national, state, and

local partners working to ensure that voters can

exercise their right to vote. Election Protection

provides comprehensive information about voting and

operates a hotline to help voters overcome problems

voting. During the 2020 election cycle, the hotline

fielded approximately 246,000 calls. Election Protection may escalate a call received on the hotline to

election officials, law enforcement, or social media

companies.

The Lawyers’ Committee, a nonpartisan, nonprofit organization, formed at the request of President

John F. Kennedy in 1963, uses legal advocacy, inside

and outside the courts, to achieve racial justice, to

ensure that Black people and other people of color

have the voice, opportunity, and power to make the

promises of our democracy real. It has a national

voting rights litigation practice. See, e.g., Arizona v.

Inter-Tribal Council of Ariz., Inc., 570 U.S. 1 (2013);

Shelby Cnty. v. Holder, 570 U.S. 529 (2013). It

routinely participates in cases concerning online

speech and voter intimidation. See, e.g., Gonzalez v.

Google LLC, 143 S. Ct. 1191 (2023); Counterman v.

Colorado, 143 S. Ct. 2106 (2023); Nat’l Coal. on Black

Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Civic Participation v. Wohl, — F. Supp. 3d —, 2023 WL

2403012 (S.D.N.Y. Mar. 8, 2023).

Common Cause, one of the nation’s leading democracy organizations with over 1.5 million members,

was founded as a nonpartisan “citizens lobby” whose

primary mission is to protect and defend the democratic process and make government accountable

to the interests of ordinary people. Common Cause

promotes, on a nonpartisan basis, its members’

interest in open, honest, and accountable government

and political representation and has participated as a

party or amicus curiae in numerous court cases

related to voting rights.

The Leadership Conference is a coalition

charged by its diverse membership of more than 240

national organizations to promote and protect the civil

and human rights of all persons in the United States.

It is the nation’s oldest and largest civil and human

rights coalition working to build an America as

good as its ideals. The Leadership Conference was

founded in 1950 by A. Philip Randolph, head of the

Brotherhood of Sleeping Car Porters; Roy Wilkins

of the NAACP; and Arnold Aronson, a leader of

the National Jewish Community Relations Advisory

Council. For more than seven decades, The Leadership

Conference has led the fight for civil and human rights

by advocating for federal legislation and policy—

securing passage of landmark civil rights legislation

including the Civil Rights Acts of 1957, 1960, and

1964; the Voting Rights Act of 1965 and all of its

subsequent reauthorizations; the Fair Housing Act of

1968; the Americans With Disabilities Act of 1990; the

Matthew Shepard and James Byrd, Jr. Hate Crimes

Prevention Act of 2009; and more. Today, through

advocacy and outreach, The Leadership Conference

continues to work toward the goal of a more open and

just society. Through its Voting Rights program, it

leads efforts to strengthen and improve voting rights

laws and ensure that all citizens can fully participate

in our democracy, including combatting disinformation in elections. With its Center for Civil Rights

and Technology, it promotes access to communications

services that expand equal opportunity and participation in our democracy. The Leadership Conference’s

work is also informed and amplified by The Leadership Conference Education Fund, its public education

and research arm.

SUMMARY OF ARGUMENT

Disinformation is a major threat to the fabric of

democracy. The spread of mis- and disinformation on

social media platforms is commonplace. Examples

abound of malicious actors using such platforms to

spread false and intimidating messages to dissuade

people from voting or to undermine election integrity—

including domestic actors using scare tactics exploiting longstanding fears in Black and brown communities and foreign actors capitalizing on racial divisions

to sow discord and doubt.2

Not only are social media platforms the top choice

for bad actors to spread mis- and disinformation, but

these platforms also are used to generate and amplify

violent hostility toward election workers. This often

involves doxxing, i.e., publishing a person’s personal

Amici agree with petitioners that the lower courts erred in

finding that petitioners violated the First Amendment. See Pet.

Br. 23–43. Amici file this Brief specifically to provide background

on the disinformation and voter protection landscape and explain

how an impermissibly broad and vague injunction will endanger

election integrity.

information online, often carrying an implicit or

explicit call to action. Doxxing frequently results

in election officials receiving threats of death and

violence. These officials are being terrorized just for

doing their jobs—jobs that are essential to the running

of our democracy.

The scale of disinformation, the difficulty of identifying perpetrators, the limited resources of prosecutors

and civil society, and the pace of litigation often render

court challenges impracticable, if not impossible, for

addressing this conduct. Social media companies’

content policies prohibiting disinformation therefore

play a vital role in preserving free and fair elections.

Information sharing between and among government

agencies, voting rights organizations, and social media

companies is crucial in guarding against emerging

threats, particularly to vulnerable communities. In

this context, amici are members of the Election

Protection coalition, and as a part of that coalition,

share information with federal agencies, local election

officials, and private companies to protect election

integrity.

The Fifth Circuit’s and the district court’s injunctions infringe the rights of amici and other civil society

groups to operate this information-sharing network in

coordination with government agencies and private

social media platforms. Initially, the district court’s

injunction restricted federal agencies and their employees from collaborating “with the Election Integrity

Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the

purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or

reduction of content posted with social-media companies containing protected free speech.” Pet. App. 159a.

This was a content-based speech and petition restriction that fails strict scrutiny. The Fifth Circuit

appropriately overturned this restriction, and amici

urge this Court not to reinstate any part of the district

court’s injunction. Id. at 247a.

The Fifth Circuit’s more limited injunction, nevertheless, will continue to improperly restrict the government’s ability to protect election integrity and

consequently impair amici’s ability to protect the right

to vote against election disinformation. The Fifth

Circuit’s modified injunction prohibits certain government agencies and their employees from taking

“actions, formal or informal, directly or indirectly, to

coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including

through altering their algorithms, posted social-media

content containing protected free speech.” Id. at 248a.

This language is so overbroad and vague that it is

likely to cause uncertainty in the minds of government

officials at the affected agencies, as to what actions are

allowed, thus leading to reductions in their interactions with social media platforms. This will endanger

the right to vote as information sharing between and

among civil society, government, and social media

companies is essential to prevent malicious election

interference and voter suppression efforts.

The Court should vacate the Fifth Circuit injunction, decline to reinstate the district court injunction,

and remand with instructions to dismiss the case.

FACTUAL BACKGROUND

The use of social media to disseminate false

information—whether directly by malicious actors

(disinformation) or by those unaware that the

information is false (misinformation)—threatens free

and fair elections. Such actions not only destabilize

the election process itself, but also enable intimidation

of voters and election officials and undermine the

public’s trust in the outcome of elections. The vast

online landscape, especially social media, offers ideal

conditions for those hostile to voting rights to reach

broad audiences while also targeting specific individuals or communities.

A. Election Mis- and Disinformation on Social

Media

Online misinformation and disinformation to influence elections and disenfranchise voters is commonplace. Sylvia Albert et al., As a Matter of Fact: The

Harms Caused by Election Disinformation Report,

Common Cause Educ. Fund, at 12 (Oct. 2021).3 Traditionally, deceptive practices often involved narrow

targeting by geography, such as distributing flyers

in certain neighborhoods. Ian Vandewalker, Digital

Disinformation and Voter Suppression, Brennan Ctr.

for Just. (Sept. 2, 2020).4 Today, malicious actors use

“sophisticated microtargeting to surgically focus on

certain demographics,” directing disinformation online

toward a specific local election or a national audience.

Id. at 1.

Common forms of disinformation historically used

include posting incorrect election dates or bogus election rules, often targeted towards a specific demographic or political group; voter intimidation targeted

https://www.commoncause.org/wp-content/uploads/2021/10/

CC_AsaMatterofFact_FINAL_10.27.21.pdf (as visited Dec. 21,

2023).

https://www.brennancenter.org/our-work/research-reports/

digital-disinformation-and-vote-suppression (as visited Dec. 21,

2023).

at communities of color; untrue claims about election

security; and untrue claims about postelection results.

Albert, at 15. For example, in the leadup to the 2016

and 2018 elections, the false claim that Immigration

and Customs Enforcement (ICE) officers would be

patrolling the polls spread on social media. Blake

Peterson, ICE, Dispelling Rumors, Says It Won’t

Patrol Polling Places, ProPublica (Nov. 2, 2019).5

Social media posts about ICE presence at polls chill

participation in elections by those fearful of and

disproportionately impacted by ICE enforcement,

particularly communities of color. Even though only

U.S. citizens can vote, naturalized citizens may fear

being mistaken for a non-citizen and unduly harassed,

and voters with non-citizen family members may fear

their relatives will be subject to unfair scrutiny.

False information has been disseminated during

past election cycles via social media to deter Black

voter participation or trick. In 2016, a prominent social

media personality fraudulently promoted images and

tweets encouraging voters to cast their ballots online

or via text message, such as a fake advertisement

purportedly on behalf of the Hillary Clinton campaign

showing a Black woman holding an “African Americans for Hillary” sign and encouraging voters to “Avoid

the Line” and “Vote from Home.” Press Release, U.S.

Att’ys Off. E.D.N.Y., Social Media Influencer Douglass

Mackey Convicted of Election Interference in 2016

Presidential Race (Mar. 31, 2023).6 While this instance

of election interference resulted in a conviction, this is

https://www.propublica.org/article/ice-dispelling-rumors-saysit-wont-patrol-polling-places (as visited Dec. 21, 2023).

https://www.justice.gov/usao-edny/pr/social-media-influencer

-douglass-mackey-convicted-election-interference-2016 (as visited

Dec. 21, 2023).

exceptionally rare. Prosecutors do not have the resources to combat the huge scale of voter intimidation

online.

Likewise, in 2016, the Russian government used

social media to attempt to suppress Black turnout. See

S. Rep. No. 116-290, vol. II at 35, 38–39 (2020).7 The

Senate Select Committee on Intelligence found that

the Kremlin used a private company, the Internet

Research Agency (IRA), which operated over 50,000

“troll” accounts on social media to influence the

public’s perception of the 2016 election. Id. at 18, 23–

27. Much of this content targeted Black audiences on

Instagram, Twitter, and Facebook. Id. at 6, 49. For

example, twelve IRA Instagram accounts with names

like “@Blackstagram_” gained over 100,000 followers

each. Id. at 49. These accounts then disseminated

narratives to discourage voting—like “Don’t Vote at

All,” “Why Would We Be Voting,” or “Our Votes Don’t

Matter.” Id. at 35. The Senate Intelligence Committee

found that an

overwhelming operational emphasis on race

is evident in the IRA’s Facebook advertisement content (over 66 percent contained a

term related to race) and targeting (locational

targeting was principally aimed at AfricanAmericans in key metropolitan areas with

well-established black communities and flashpoints in the Black Lives Matter movement),

as well as its Facebook pages (one of the IRA’s

top-performing pages, Blacktivist, generated

11.2 million engagements with Facebook

users), its Instagram content (five of the top

https://www.intelligence.senate.gov/sites/default/files/docu

ments/Report_Volume2.pdf (as visited Dec. 21, 2023).

10 Instagram accounts were focused on

African-American issues and audiences).

Id. at 38–39 (internal quotations omitted).

Disinformation on social media in non-English

languages, particularly Spanish, was also rampant in

the 2020 and 2022 elections. Tiffany Hsu, Misinformation Swirls in Non-English Languages Ahead of

Midterms, N.Y. Times (Oct. 12, 2022).8 Ahead of the

2022 midterm elections, disinformation about election

fraud, anti-discrimination policies, and reproductive

rights saturated WeChat, a social media platform used

by an estimated sixty percent of the Chinese American

community. Kimmy Yam, Right-Wing Disinformation

Ramps Up on WeChat Ahead of Midterms, Report

Finds, NBC News (Oct. 3, 2022).9 The reach of the

internet allows even a low rate of impact to disenfranchise significant numbers of voters and threaten free

and fair elections.

B. Intimidation of Election Officials

Those who want to disrupt elections use social

media to harass or intimidate election officials. One

common tactic is doxxing, which involves publishing

individuals’ personal information online so that others

can attack and harass them and their families. Albert,

at 15–16; see Dumpson v. Ade, No. 18-1011, 2019 WL

3767171 (D.D.C. Aug. 9, 2019) (neo-Nazi doxxed Black

woman in an effort of coordinated harassment).

Election officials have experienced doxxing in recent

https://www.nytimes.com/2022/10/12/business/media/midterm

s-foreign-language-misinformation.html (as visited Dec. 21, 2023).

https://www.nbcnews.com/news/asian-america/right-wing- disin

formation-ramps-wechat-ahead-midterms-report-finds-rcna50539

(as visited Dec. 21, 2023).

elections. Ahead of the 2018 midterms, the home

addresses and phone numbers of two Black women

election officials in Florida were posted to Facebook

groups such as “Confederate Resistance.” Jerry Iannelli,

Far-Right Groups Just Doxxed Elections Supervisors

Brenda Snipes and Susan Bucher, Mia. New Times

(Nov. 14, 2018).10

Election officials also experience intimidation from

doxxing and disinformation amplified on social media.

Georgia Republican election official Gabriel Sterling

lamented the threats workers in his office received

after the 2020 election: “Someone’s going to get hurt,

someone’s going to get shot, someone’s going to get

killed.” Richard Fausset, ‘It Has to Stop’: Georgia

Election Official Lashes Trump, N.Y. Times (Dec. 1,

2020).11 Both Democratic and Republican secretaries

of state and other election workers have been targeted

by death threats and violent intimidation.12

https://www.miaminewtimes.com/news/broward-countys-bren

da-snipes- was-doxxed-online-10911462 (as visited Dec. 21, 2023).

https://www.nytimes.com/2020/12/01/us/politics/georgia-elec

tion-trump.html (as visited Dec. 21, 2023).

Linda So, Trump-Inspired Death Threats Are Terrorizing

Election Workers, Reuters (June 11, 2021), https://www.reuters.

com/investigates/special-report/usa-trump-georgia-threats/ (as

visited Dec. 21, 2023); see also Marina Villeneuve, Justice

Department Details Threats Against Election Workers, AP (Aug. 3,

2022), https://apnews.com/article/2022-midterm-elections-violence

-presidential-judiciary-5125682e179ac1234a97756a644e353c (as

visited Dec. 21, 2023) (DOJ task force investigated over “1,000

harassing and threatening messages directed at election workers.

Roughly 100 of those have risen to the level of potential

prosecution.”).

C. The Roles of Platforms, Government, and

Civil Society in Protecting Voting Rights

Online

Civil society and government officials provide valuable information to social media companies to help

them design policies and practices to protect elections.

Most major online platforms prohibit misrepresentations about when, where, or how to vote; doxxing;

threats; harassment; and—to varying degrees—

disinformation.13 However, enforcement of these

policies vary significantly and is often lacking. See,

e.g., Free Press, Empty Promises: Inside Big Tech’s

Weak Effort to Fight Hate and Lies in 2022, at 8 (Oct.

2022) (rating efforts of Meta, TikTok, Twitter, and

YouTube “insufficient” at combatting hateful content

and disinformation).14

Social media companies in turn rely on external

engagement with civil society to help develop their

policies and obtain information about ongoing threats.

For example, Meta’s policies prohibiting voter dis13

See Facebook’s Policies for Elections and Voting: What You

Need to Know, Meta, https://about.fb.com/wp-content/uploads/

2020/12/Facebooks-Policies-for-Elections-and-Voting.pdf (as visited

Dec. 21, 2023); Community Guidelines, YouTube, https://www.you

tube.com/howyoutubeworks/policies/community-guidelines/ (as

visited Dec. 21, 2023); Community Guidelines, TikTok, https://

www.tiktok.com/community-guidelines/en/overview/ (as visited

Dec. 21, 2023); see also Carnegie Endowment for Int’l Peace, How

Social Media Platforms’ Community Standards Address Influence

Operations (Apr. 1, 2021), https://carnegieendowment.org/2021

/04/01/how-social-media-platforms-community-standards-addressinfluence-operations-pub-84201 (as visited Dec. 21, 2023).

https://www.freepress.net/sites/default/files/2022-10/empty_

promises_inside_big_techs_weak_effort_to_fight_hate_and_lies_

in_2022_free_press_final.pdf (as visited Dec. 21, 2023).

information were developed in part through its civil

rights audit, which collected external feedback on

voter suppression and election disinformation on

Facebook. See Meta, Facebook’s Civil Rights Audit –

Final Report, at 6 (July 8, 2020).15 Some platforms

have “trusted partner” programs for civil society

organizations to flag harmful content for expedited

review and to augment the companies’ competency

with different cultures and communities—such as

understanding regional slang.16 Social media companies also partner with media organizations to help

fact-check information.17

Information sharing between and among the federal

government, state and local governments, and the private sector, including social media companies and

nonprofit organizations, protects election integrity.18

https://about.fb.com/wp-content/uploads/2020/07/Civil-Right

s- Audit-Final-Report.pdf (as visited Dec. 21, 2023).

About the YouTube Priority Flagger Program, YouTube Help,

https://support.google.com/youtube/answer/7554338?hl=en

(as

visited Dec. 21, 2023); Bringing Local Context to Our Global

Standards, Meta, https://transparency.fb.com/policies/improving/

bringing-local-context (Jan. 18, 2023) (as visited Dec. 21, 2023).

See Olivia Ma, How Google and YouTube Are Investing

in Fact-Checking, Google News Initiative (Nov. 29, 2022),

https://blog.google/outreach-initiatives/google-news-initiative/how

-google-and-youtube-are-investing-in-fact-checking/ (as visited

Dec. 21, 2023); Meta’s Third-Party Fact-Checking Program, Meta,

https://www.facebook.com/formedia/mjp/programs/third-partyfact-checking (as visited Dec. 21, 2023).

Presidential Decision Directive 63 on Critical Infrastructure

Protection: Sector Coordinators, 63 Fed. Reg. 41804 (Aug. 5, 1998);

Statement by Secretary Jeh Johnson on the Designation of

Election Infrastructure as a Critical Infrastructure Subsector

(Jan. 6, 2017), https://www.dhs.gov/news/2017/01/06/statement-

Some government programs counter election disinformation with accurate information. See Pet. Br. 6;

CISA, Election Security Rumor vs. Reality https://

www.cisa.gov/rumor-vs-reality (as visited Dec. 21,

2023). Others communicate with social media companies about disinformation trends that harm vulnerable communities, Dep’t of Homeland Sec., Off. of

Inspector Gen., DHS Needs a Unified Strategy to

Counter Disinformation Campaigns, at 5–6, n.22 (Aug.

10, 2022).19 In 2020, Facebook, Twitter, and Reddit

had monthly meetings with DHS and CISA to discuss

security threats and how to address election misinformation. See David Ingram & Kevin Collier, Big Tech

Met with Govt to Discuss How to Handle Election

Results, NBC News (Aug. 12, 2020).20 The companies

said these meetings were “necessary to protect the

integrity” of the upcoming elections, given the companies’ failures to prevent disinformation in the 2016

elections. Elizabeth Dwoskin & Ellen Nakashima,

Tech Didn’t Spot Russian Interference During the Last

Election. Now It’s Asking Law Enforcement for Help,

Wash. Post (June 26, 2018).21

Voting rights experts recommend that election

officials establish contacts at social media platforms to

directly report disinformation or hacking of official

secretary-johnson-designation-election-infrastructure-critical (as

visited Dec. 21, 2023).

https://www.oig.dhs.gov/sites/default/files/assets/2022-08/OIG

-22-58-Aug22.pdf (as visited Dec. 21, 2023).

https://www.nbcnews.com/tech/tech-news/big-tech-met-gov-tdiscuss-how-handle-election-results-n1236555 (as visited Dec. 21,

2023).

https://www.washingtonpost.com/technology/2018/06/26/tech

-didnt-spot-russian-meddling-during-last-election-now-its-asking

-law-enforcement-help/ (as visited Dec. 21, 2023).

channels. See Election Integrity P’ship, The Long

Fuse: Misinformation and the 2020 Election, at 236

(June 15, 2021).22 Voters who see false information

online often call local officials to clear up their

confusion, so these officials can alert platforms. See

Amicus Br. of Brennan Ctr. for Just., Doc. 105-1 at 5,

Ayyadurai v. Galvin, No. 1:20- cv-11889 (D. Mass. May

19, 2021).

D. The Role

Coalition

the

Election

Protection

Monitoring online platforms, identifying disinformation and misinformation, pinpointing responsible

parties, and implementing solutions require a wide

range of actors. The Election Protection coalition

routinely engages with federal officials, local election

officials, and social media companies to address the

proliferation of false information related to voting and

elections. While litigation may be able to redress some

instances of misinformation and disinformation, it is

not sufficiently expedient to combat the volume and

velocity of social media content. Further, the tremendous amount of time and resources entailed in

litigation makes it crucial that governmental and

private entities continue to work together to identify

and mitigate these threats.

The Election Protection coalition engages thousands

of volunteers who provide voters with information,

document problems voters encounter, host voter

protection field programs, and work on the ground to

identify and remove barriers to voting. To that end,

members of the coalition also periodically survey and

speak with election officials, gathering reports of

https://stacks.stanford.edu/file/druid:tr171zs0069/EIP-FinalReport.pdf (as visited Dec. 21, 2023).

harassment, threats, and intimidation that they face

online and in person. See Brennan Ctr. for Just.,

Election Officials Under Attack: How to Protect

Administrators and Safeguard Democracy (June

2021);23 Brennan Ctr. for Just., Local Election Officials

Survey (June 2021);24 (Mar. 2022);25 (Apr. 2023).26

Election Protection has a team that monitors social

media and other online platforms for election disinformation, voter intimidation, and other threats to

election integrity.

Amici have met with officials from DOJ, DHS, CISA,

and other federal agencies, as well as state and local

officials, to relay information gathered from community partners, election officials, online monitoring, and

the hotline. The Lawyers’ Committee has submitted

complaints concerning online election disinformation,

violent threats against voters and officials, and other

forms of voter suppression to federal agencies such as

the FBI and FCC. See, e.g., In re Burkman, Forfeiture

Order, FCC 23-44, No. EB-TCD-21-00032652 (June

6, 2023) (complaints concerning voter intimidation

robocalls). Before elections, DOJ has asked Election

Protection about concerns being reported to the

hotline and for recommendations about where to

send poll observers. The availability of these

https://www.brennancenter.org/our-work/policy-solutions/ele

ction-officials-under-attack (as visited Dec. 21, 2023).

https://www.brennancenter.org/our-work/research-reports/

local-election-officials-survey-june-2021 (as visited Dec. 21, 2023).

https://www.brennancenter.org/our-work/research-reports/

local-election-officials-survey-march-2022 (as visited Dec. 21,

2023).

https://www.brennancenter.org/our-work/research-reports/

local-election-officials-survey-april-2023 (as visited Dec. 21,

2023).

communication channels fosters collaboration and

enables federal agencies to use the information to

protect the safety and integrity of elections, including

by better allocating limited resources to protect the

security of election officials and voters.

Election Protection also works with major social

media companies to alert them to polling place

disruptions, evolving threats to voters and election

officials, and disinformation that violates platforms’

rules. Like government officials, social media companies rely on Election Protection to give them insight

into the experiences of users so that the companies can

better understand the threat landscape on their

platforms.

ARGUMENT

I. THE COURT SHOULD NOT REINSTATE

THE DISTRICT COURT’S INJUNCTION

BECAUSE IT WOULD VIOLATE THE

FIRST AMENDMENT RIGHTS OF AMICI.

The district court’s injunction was an unconstitutional, content-based prior restraint on the free speech

and the right to petition of voter protection organizations. These prohibitions in the district court’s injunction failed strict scrutiny, as they sweepingly restricted, without justification, amici’s speaking and

petitioning regarding election disinformation. Under

no circumstances should this Court reinstate the

district court’s injunction.

A. The District Court’s Injunction Was a

Prior Restraint on Amici’s Free Speech.

It is well settled that injunctions prohibiting future

communication between specified persons are prior

restraints on free speech. Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 70 (1963); see also Org. for a

Better Austin v. Keefe, 402 U.S. 415, 418–19 (1971)

(treating temporary injunction as a prior restraint on

free speech). That is precisely what the district court’s

injunction did, as the Fifth Circuit recognized. Pet.

App. 247a. As relevant to voter protection organizations, such as amici, the injunction prohibited the

federal government officials from:

collaborating, coordinating, partnering, switchboarding, and/or jointly working with the

Election Integrity Partnership, the Virality

Project, the Stanford Internet Observatory, or

any like project or group for the purpose of

urging, encouraging, pressuring, or inducing

in any manner removal, deletion, suppression, or reduction of content posted with

social media companies.

Id. at 159a.

Each of the prohibited actions necessarily affected

the core work of such organizations. Indeed, banning

“switchboarding” prohibited communication between

defendants and organizations like amici, as the district

court defined switchboarding as a “disinformationreporting system” for “forward[ing] information to

CISA” which would “in turn share the information

with the social-media companies.” Id. at 68a.

The injunction’s ban on collaboration and information sharing for certain purposes was indisputably

content based. It explicitly turned on the purpose and

substance of communications with organizations like

amici, and so it plainly “applie[d] to particular speech

because of the topic discussed or the idea or message

expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163

(2015).

This content-based speech ban was not just a

restraint on government officials’ speech, it also

restrained the voter protection organizations that

would otherwise speak with officials. As the Fifth

Circuit recognized, the district court injunction “may

implicate private, third-party actors that are not

parties in this case and that may be entitled to their

own First Amendment protections.” Pet. App. 247a.

The injunction prohibited “all acting in concert with”

agencies and their employees related to the injunction’s prohibited conduct. Id. at 159a. While the

district court did not define what constituted “acting

in concert with” agencies, the implication of this

pronouncement was clear: Nonparties beware; this

injunction may apply to you.

B. The District Court’s Injunction Infringed

on Amici’s Right to Petition the Government.

The content-based speech ban also infringed on

amici’s First Amendment right to petition the

government for a redress of grievances. See Pet. App.

247a. The right to petition is “one of the most precious

of the liberties safeguarded by the Bill of Rights.”

Lozman v. City of Riviera Beach, 138 S. Ct. 1945,

1954–55 (2018). It “allows citizens to express their

ideas, hopes, and concerns to their government and

their elected representatives.” Borough of Duryea v.

Guarnieri, 564 U.S. 379, 388 (2011).

The right to petition “extends to all departments of

the Government.” BE & K Constr. Co. v. NLRB, 536

U.S. 516, 525 (2002). This right, central to the nation’s

founding, encompasses citizens communicating concerns to federal and state government bodies tasked

with protecting the right to vote. See Bernstein v.

Sims, 643 F. Supp. 3d 578, 586 (E.D.N.C. Dec. 1, 2022)

(issuing preliminary injunction against county board

of elections which had barred plaintiff from attending

public board meetings).

Section 5 of the district court’s injunction gutted

amici’s and other voter protection organizations’ right

to petition the government about vitally important

election security issues. Pet. App. 159a. As discussed

above, the injunction, in all its opacity, could be read

to prohibit the very federal agencies tasked with

protecting the right to vote—DOJ, the FBI, and

CISA—from receiving and sharing information from

amici about election disinformation or voter intimidation. See id.

The injunction’s broader ban on government

agencies collaborating or coordinating “in any way”

with amici regarding broad swaths of election disinformation, misinformation, and voter intimidation

on social media prohibited two-way communication

necessary for a redress of grievances. See id.; Pet. App.

247a. Even if there was no limit on amici’s ability to

talk to defendants about disinformation or misinformation on social media, the agencies would be legally

precluded from listening, much less taking any

constitutionally valid action in response. This would

render amici’s petition rights illusory.

C. The District Court’s Injunction Failed

Strict Scrutiny.

As a content-based prior restraint on free speech

and the right to petition, the injunction was subject to

strict scrutiny. See Reed, 576 U.S. at 163–64; Wayte v.

United States, 470 U.S. 598, 610 n.11 (1985) (speech

and petition are “related and generally subject to

the same constitutional analysis”). Accordingly, the

injunction was “presumptively unconstitutional and

may be justified only if the government proves that [it

is] narrowly tailored to serve compelling state

interests.” Reed, 576 U.S. at 163; see also Carroll v.

President & Comm’rs of Princess Anne, 393 U.S. 175,

183 (1968) (An injunction “must be couched in the

narrowest terms that will accomplish the pin-pointed

objective.”). An injunction cannot satisfy this test

where its scope exceeds its purpose. See Fed. Election

Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 478

(2007) (“A court applying strict scrutiny must ensure

that a compelling interest supports each application of

a statute restricting speech.”) (emphasis in original).

The injunction here failed the narrow tailoring

requirement on both overbreadth and vagueness

grounds. First, the injunction was not narrowly

tailored to the asserted interest of halting unconstitutional government coercion. For example, the injunction against switchboarding prohibited merely communicating information for disfavored purposes, even

when that communication did not amount to coercion.

Pet. App. 160a. Moreover, the injunction restrained

an untold number of non-governmental entities from

communicating with the government—potentially

including amici—regardless of whether they were

involved in the alleged wrongs or underlying facts. By

resorting to language such as “and like companies”

and “or any like project or group,” the injunction

appeared to be limitless in application. Id. at 159a.

The injunction’s exceptions further confirmed its

lack of tailoring. For example, by carving out only

“criminal efforts to suppress voting,” id. at 160a

(emphasis added), the injunction prohibited amici

from reporting to government agencies voter intimidation that is subject to civil enforcement. See, e.g., 52 U.S.C.

§ 10308(d)–(e); 42 U.S.C. § 1985(3). By its terms, then,

amici would not have been able to report to DOJ’s Civil

Rights Division the doxxing of voters of color or voters

affiliated with a particular religion or political party,

as doxxing may not always be criminal but may still

cause civilly actionable voter intimidation. See Wohl,

2023 WL 2403012, at *22 (finding robocall deceptively

threatening “that a voter’s private information will

become exposed if that person votes by mail” violates

Voting Rights Act). Moreover, it may be unclear

whether an act is a crime, exacerbating the risk

that amici would have violated the injunction. By

inhibiting voter protection organizations from reporting grave civil rights concerns to the proper agency,

the injunction struck at the very core of the First

Amendment’s free speech and petition protections.

Second, the injunction’s vague text failed to provide

organizations like amici with adequate guidance as

to what speech was prohibited. Injunctions do not

provide adequate guidance where they proscribe vast

swaths of expressive conduct without defining what

conduct crosses the line. Illustrative is a case in which

the Second Circuit vacated an injunction prohibiting

various types of speech that generally are unprotected

by the First Amendment, including “engaging in

fraudulent or defamatory representations” and

“threatening or harassing” the plaintiff. Metro. Opera

Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps.

Int’l Union, 239 F.3d 172, 176 (2d Cir. 2001). Noting

that the district court held the defendant in contempt

under the injunction for chanting “Shame on You” and

“No More Lies,” the Second Circuit held the injunction

was an unconstitutional prior restraint that “fr[o]ze”

legitimate, protected speech because the injunction

was “so vague and imprecise that the [defendant]

cannot fairly determine what future speech is permit-

ted and what speech might place it in contempt.” Id.

at 176, 178–79.

The district court’s injunction suffered from the

same constitutional defects when it carved out

“threats that threaten the public safety or security of

the United States” or based the injunction’s prohibitions on whether a social media post was “protected

free speech” or “protected by the Free Speech Clause

of the First Amendment to the United States

Constitution in accordance with the jurisprudence of

the United States Supreme Court.” Pet. App. 164a,

172a. Indeed, it is precisely because “the line between

legitimate and illegitimate speech is often so finely

drawn” that “a free society prefers to punish the few

who abuse rights of speech after they break the law

than to throttle them and all others beforehand.”

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559

(1975); see also Pet. App. 247a (“[C]ourt orders that

actually [] forbid speech activities are classic examples

of prior restraints.”) (quoting Alexander v. United

States, 509 U.S. 544, 550 (1993)).

The other enumerated carveouts fared no better.

The injunction frequently resorted to conclusory

terms like “criminal activity,” “criminal conspiracies,”

“national security threats,” “criminal efforts to suppress voting,” “threats that threaten the public safety

or security of the United States,” and “postings

intending to mislead voters about voting requirements

and procedures.” Pet. App. 159a–160a. A government

official may not know whether online conduct falls

into one of these categories absent investigation and

discussion with social media companies. If investigation alone were sufficient to meet one of the injunction’s exceptions, then the exceptions would have

swallowed the rule and the injunction would be

rendered meaningless—serving no purpose other than

to paralyze those charged with protecting elections.

The injunction was even vague about which entities

were prohibited from collaborating with the government, defining “social media companies” to include

“and like companies,” and identifying organizations

with whom government officials may not collaborate,

coordinate, partner, or switchboard to include “or any

like project or group.” Id. at 159a. The Fifth Circuit

observed that the injunction failed to “identify the

specific parties that are subject to the prohibitions”

and that it “exceed[ed] the scope of the parties’

presentation.” Id. at 247a.

The resulting opaqueness in the district court’s

injunction left amici and comparable private actors, as

well as government officials, helpless to divine the

dividing line between permitted and prohibited. Social

media posts about the security of mail-in voting could

have come within exceptions for “informing socialmedia companies of postings intending to mislead

voters about voting requirements and procedures,” id.

at 159a—or not, since they could have equally fallen

within proscribed conduct. Obeying the law is not

supposed to be a guessing game, particularly where

constitutional rights are concerned.

D. The District Court’s Injunction Inhibited Amici’s Ability to Discuss Election

Protection Matters with the Government.

The injunction’s crippling overbreadth and vagueness would have chilled critical information-sharing

between organizations like Election Protection, local

election officials, federal agencies, and social media

companies. This in turn would have impeded citizens

from making informed decisions and participating in

elections.

The government would have ceased engaging with

social media companies and voter protection organizations to avoid the risk of contempt. This had already

happened. One day after the injunction’s issuance, the

State Department cancelled its regular monthly

meetings with Facebook “pending further guidance.”

Joseph Menn et al., State Dept. Cancels Facebook

Meetings After Judge’s ‘Censorship’ Ruling, Wash.

Post (July 5, 2023).27 Facebook’s spokesperson anticipated that Facebook’s regular meetings with other

executive agencies, such as CISA, were also likely to

be cancelled given the injunction. Id. Just as the State

Department cancelled meetings with Facebook, other

enjoined government agencies and officials likely

would not have met with amici to discuss Election

Protection priorities. And this would have undermined

amici’s critical voter protection missions.

The injunction would likewise have chilled communications between Election Protection and state

and local election officials. Election officials must be

able to combat disinformation to administer free and

fair elections, including by reporting falsehoods they

learn about from voters and civil society groups such

as Election Protection to those who host social media

platforms. But there was no limiting principle in this

injunction to prevent a similar injunction being issued

against state actors beyond the federal agencies.

Consequently, state and local election officials could

have been intimidated from working with Election

https://www.washingtonpost.com/technology/2023/07/05/miss

ouri-biden-judge-censorship-ruling-analysis/ (as visited Dec. 21,

2023).

Protection or from directly or indirectly combatting

disinformation, imperiling its core mission.

II. THE FIFTH CIRCUIT’S INJUNCTION

SHOULD BE VACATED BECAUSE IT IS

VAGUE, OVERBROAD, AND WILL CHILL

EFFORTS TO PROTECT VOTING RIGHTS.

The Fifth Circuit correctly found that that the

district court’s injunction was “broader than necessary” to remedy the plaintiffs’ injuries and struck

down nine out of the ten prohibitions, including those

discussed above that would have directly impacted

amici. Pet. App. 244a. It modified the remaining

prohibition:

Defendants [the White House, the CDC, the

FBI, and CISA,] and their employees and

agents, shall take no actions, formal or

informal, directly or indirectly, to coerce or

significantly encourage social-media companies to remove, delete, suppress, or reduce,

including through altering their algorithms,

posted social-media content containing protected free speech. That includes, but is not

limited to, compelling the platforms to act,

such as by intimating that some form of

punishment will follow a failure to comply

with any request, or supervising, directing, or

otherwise meaningfully controlling the socialmedia companies’ decision-making processes.

Id. at 248a.

The Fifth Circuit’s modified injunction, however, is

still fatally defective. First, it violates Rule 65 of the

Federal Rules of Civil Procedure, which requires an

injunction to be specific and defined. Second, it is

impermissibly overbroad because it seeks to remedy

future actions of government agencies beyond the

specific conduct complained of. The overall effect of

the injunction, if permitted to persist, would be a

substantial impairment of the government’s ability to

work collaboratively with civil society and social media

platforms to protect elections against disinformation

and voter suppression efforts.

A. The Fifth Circuit’s Injunction Is Vague

in Violation of Rule 65.

An injunction runs afoul of the Federal Rules of Civil

Procedure if it fails to “state its terms specifically,” and

“describe in reasonable detail” the acts restrained

or required. Fed. R. Civ. P. 65(d). The “specificity

provisions of Rule 65(d) are no mere technical requirements,” but rather “designed to prevent uncertainty

and confusion on the part of those faced with injunctive orders.” Schmidt v. Lessard, 414 U.S. 473, 476

(1974). The test is whether “an ordinary person

reading the court’s order should be able to ascertain

from the document itself exactly what conduct is

proscribed.” 11A Charles Allan Wright & Arthur R.

Miller, Federal Practice and Procedure, § 2955 (3d ed.

2023).

The Fifth Circuit does not even attempt to define

key terms in the injunction. For example, it prohibits

defendants from taking any “actions, formal or

informal.” Even assuming that “formal” actions refers

to formal rulemaking or decision-making, nowhere

does the Fifth Circuit define what “informal” action

means. Pet. App. 248a. The record in this case shows

that most of the communications between the federal

officials and the platforms in 2020 occurred via emails.

Are those “informal actions”? Would one email from a

government official to the content moderation team

at a social media company constitute an “informal

action”?

Similarly, the Fifth Circuit does not explain what it

means for government agencies to take no “action”

“directly or indirectly” vis-à-vis social media platforms. Indeed, the only use of the word “direct” by the

court in its opinion is in describing whether conduct

of social media platforms was a “direct” result of

communications from the government, not whether

the government “directly” acted vis-à-vis the platforms. See, e.g., id. at 224a (Platforms changed their

course “as a direct result” of messages from White

House officials.); id. at 234a (The platforms “reacted”

to requests from the FBI by taking down content “in

direct compliance” with the request.); id. at 236a

(CDC officials “directly impacted the platforms’ moderation policies” because platforms later “adopted rule

changes meant to implement the CDC’s guidance.”).

What constitutes an “indirect” “action” to tell social

media companies to take down content or change

policies? Compounding the uncertainty, what is an

“indirect,” “informal” “action” and how are officials

supposed to know where the line is?

The examples cited by the Fifth Circuit of impermissible “formal or informal,” “direct or indirect”

actions serve only to underscore the inherent vagueness in the injunction. The court faults the CDC

for “engag[ing] on a regular basis” with platforms,

“flagg[ing] content” such as misinformation that

CDC recommended for removal and providing “direct

guidance” on misinformation policies. Id. at 189a

(cleaned up). The court chides FBI officials for

“regularly me[eting] with the platforms,” “shar[ing]

strategic information,” “frequently alert[ing] the social

media companies to misinformation spreading on their

platforms,” “monitor[ing] their content moderation

policies,” and “urg[ing]” the platforms to take content

down.” Id. at 190a–191a.

The court even admonishes White House officials

for speaking at press conferences about their policy

positions, such as “the White House expects more from

the platforms.” Id. at 187a (cleaned up). The Fifth

Circuit’s analysis with respect to White House officials

illustrates just how ill-defined these injunction terms

are. The court found that the officials’ statements

during press conferences were the types of impermissible “actions” that run afoul of the First Amendment. Id. at 222a–223a. As part of that analysis, the

Fifth Circuit explains that officials “leaned into the

inherent authority of the President’s office” when

they expressed their views at press conferences,

for example, by stating that platforms “needed to

take greater responsibility and action,” or that the

“President has long been concerned about the power of

large social media platforms,” or that “fundamental

reforms” were needed. Id. at 189a. The court found

that these statements amounted to “inflammatory

accusations” that somehow compelled social media

platforms to change their policies. Id. at 227a. In so

finding, the Fifth Circuit suggests that White House

officials could not even comment on such policies

publicly without risking taking impermissible

“action.”

The Fifth Circuit uses such broad and undefined

language that federal officials cannot discern which

actions are permissible and which are impermissible

under the terms of the injunction. It is unclear

whether even general statements by officials at press

conferences might be “formal or informal” or “direct or

indirect” actions. Thus, the injunction places federal

officials in a bind, making it difficult for them to know

what they may or may not do to address election

disinformation and protect election integrity without

risking contempt. The vagueness of the injunction

violates Rule 65.

B. The Fifth Circuit’s Injunction Is Impermissibly Overbroad.

The Fifth Circuit’s injunction is impermissibly

overbroad because it is not narrowly tailored to

remedy a specific action, and in fact, reaches conduct

far beyond the conduct challenged in the case.

An injunction is overbroad where it exceeds the legal

basis of the lawsuit and the “extent of the violation

established.” Califano v. Yamasaki, 442 U.S. 682,

702 (1979). A “plaintiff’s remedy must be tailored

to redress the plaintiff’s particular injury,” Gill v.

Whitford, 138 S. Ct. 1916, 1934 (2018), and injunctive

relief may “be no more burdensome to the defendant

than necessary to provide complete relief to the

plaintiffs,” Califano, 442 U.S. at 702; see United States

v. Texas, 599 U.S. 670, 703 (2023). The requirement

for a narrowly tailored remedy stems from a federal

court’s “constitutionally prescribed role [] to vindicate

the individual rights of the people appearing before it.”

Gill, 138 S. Ct. at 1916.

The plaintiffs here challenged certain government

agencies for their communications specifically related

to election misinformation in 2020, as well as the

COVID-19 pandemic, vaccines, and interventions.

But the injunction prohibits all future messages,

communications, and interactions between certain

government agencies, their employees and agents and

social media platforms urging removal or deletion of

material, regardless of the content of the material.

This will lead to serious consequences. Under the

injunction, enjoined agencies and their officials would

not be able to do anything about the abundant dis- and

misinformation online pertaining to voting, including

sharing intelligence with social media companies or

voicing policy positions on content moderation at press

conferences, for fear that these statements might be

perceived by the platforms as “coercive.” For example,

as discussed above, the court faults White House

officials for using their bully pulpit to make public

statements directed towards content moderation

policies and holding social media platforms accountable. Pet. App. 222a–225a. Similarly, the court finds

that the FBI’s communications such as “regularly

meeting with platforms” and sharing “strategic

information” with social media companies to “alert

them to misinformation trends in the lead-up to

federal elections,” id. at 190a, might be perceived as

threatening or coercive simply because the FBI has

“inherent authority” as a law enforcement agency, id.

at 233a–234a.

As these examples illustrate, there is no limiting

principle to the Fifth Circuit’s injunction. If strong

words from the White House’s bully pulpit and general

communications from a law enforcement agency

are impermissible actions, it is hard to see how any

government communication to any online platform—

or even just discussing a company’s activities in

public—could be permissible. See Pet. Br. 40–41. It

would be functionally impossible for government

officials to ever discuss any issue of significance

related to a social media platform for fear of drawing

a judicial rebuke or worse.

Perhaps anticipating that its remedy would generate widespread criticism, the Fifth Circuit acknowl-

edges that its injunction is broad because it “extend[s]

[a] benefit or protection to persons other than prevailing parties,” id. at 249a, but concludes nevertheless

that this “breadth [is] necessary to give parties the

relief to which they are entitled,” id. at 250a. That

logic runs counter to the narrow tailoring requirement

which requires the relief ordered by a court to be

specific to the parties. But the relief granted here is

much broader and restricts the activities of federal

officials far beyond the complained of conduct,

creating significant obstacles to the government’s duty

to protect election integrity and the public welfare

generally.

These chilling effects will reach beyond the sanctioned federal officials. State and local election

officials will see the precedent of this case and

proactively self-censor for fear of drawing a lawsuit

because they cannot know, based on the Fifth Circuit’s

injunction, what is inbounds and out-of-bounds. See

Pet. Br. 50. These election administrators are the first

line of defense for our republic; they are often the ones

who spot problems on the ground and raise the alarm.

If they are afraid to report what they see, the integrity

of our elections will be in grave danger, and it is the

enemies of democracy, foreign and domestic, who will

benefit. The defects in the Fifth Circuit’s injunction

strike at the core ability of the government to protect

that which is “preservative of all rights”—the right to

vote. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

CONCLUSION

The Court should vacate the Fifth Circuit’s injunction and remand with instructions to dismiss the case.

Respectfully submitted,

DAMON HEWITT*

JON GREENBAUM

EZRA ROSENBERG

DAVID BRODY

Counsel of Record

POOJA CHAUDHURI

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K Street, N.W., Ste. 900

Washington, DC 20005

(202) 662-8600

dbrody@lawyerscommittee.org

*Admitted in Pennsylvania only;

Practice limited to matters before

federal courts.

Counsel for Amici Curiae

December 22, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.