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 A ppeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF CENTER FOR

AMERICAN LIBERTY IN SUPPORT OF

AFFIRMANCE FOR RESPONDENTS

Mark Trammell

Josh Dixon

Eric Sell

Center for A merican

Liberty

K arin Sweigart

Mark Meuser

Dhillon Law Group, Inc.

177 Post Street, Suite 700

San Francisco, CA 94108

Harmeet K. Dhillon

Counsel of Record

Center for A merican

Liberty

1311 South Main Street,

Suite 207

Mount Airy, MD 21771

(703) 687-6212

harmeet@libertycenter.org

Counsel for Amicus Curiae

Center for American Liberty

327341

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

IDENTITY AND INTEREST OF

AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

T H E G OV ER N M EN T M AY NO T

S I G N I F IC A N T LY E NC OU R A G E

PR I VAT E AC T OR S T O C ENS OR

PROTECTED SPEECH . . . . . . . . . . . . . . . . . . . 6

A. The Government Speech Doctrine does

not permit regulation of protected

speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Significant encouragement transforms

government speech into government

regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. THE GOVERNMENT REGULATED

PROTECTED SPEECH HERE . . . . . . . . . . . 14

III. T H E F I F T H C I R C U I T ’ S T E S T

I M P E R M I S S I B LY C O L L A P S E S

SIGNIFICANT ENCOURAGEMENT

INTO CONTROL . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF CITED AUTHORITIES

Page

CASES:

Air Line Pilots Ass’n, Intern. v.

Dep’t of Aviation of City of Chicago,

45 F.3d 1144 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 11

Am. Freedom Def. Initiative v.

Suburban Mobility Auth. For Reg’l Transp.,

978 F.3d 481 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 8

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 21

Barrows v. Becerra,

24 F.4th 116 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 17

Bd. of Regents of Univ. of Wis. Sys. v.

Southworth,

529 U.S. 217 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Blum v. Yaretsky,

457 U.S. 991 (1982) . . . . . . . . . . . . . 9, 10, 12, 13, 19, 21

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) . . . . . . . . . . . . . . . . . . . . . . 9, 10, 14

Ciraci v. J.M. Smucker Co.,

62 F.4th 278 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 14

iii

Cited Authorities

Page

Cummings v. Missouri,

71 U.S. 277 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18

Dennis v. Sparks,

449 U.S. 24 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Evans v. Newton,

382 U.S. 296 (1966) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Flagg Bros. v. Brooks,

436 U.S. 149 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Franz v. United States,

707 F.2d 582 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . 11

Gundy v. City of Jacksonville Fla.,

50 F.4th 60 (11th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 6

Hart v. Facebook, Inc.,

No. 22-cv-737-CRB, 2023 WL 3362592

(N.D. Cal. May 9, 2023), appeal filed,

No. 23-15858 (9th Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Janny v. Gamez,

8 F.4th 883 (10th Cir. 2021) . . . . . . . . . . . . . . 10, 11, 13

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

La. Div. Sons of Confederate. Vet. v.

City of Natchitoches,

821 F. App’x 317 (5th Cir. 2020) . . . . . . . . . . . . . . . . 11

Marsh v. Alabama.,

326 U.S. 501 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Matal v. Tam,

582 U.S. 218 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Nat’l Rifle Ass’n of Am. v. Vullo,

49 F.4th 700 (2d Cir. 2022), cert. granted,

No. 22-842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Norwood v. Harrison,

413 U.S. 455 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

O’Handley v. Weber,

62 F.4th 1145 (9th Cir. 2023), cert.

pending, No. 22-1199 (filed on

June 8, 2023) . . . . . . . . . . . . . . . . . . . . 1, 5, 6, 13, 18, 19

Otto v. City of Boca Raton, Fla.,

981 F.3d 854 (11th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 8

v

Cited Authorities

Page

Paige v. Coyer,

614 F.3d 273 (6th Cir. 2010) . . . . . . . . . . . . . . . . . 12, 13

Peltier v. Charter Day Sch., Inc.,

37 F.4th 104 (4th Cir. 2022) (en banc),

cert. denied, No. 22-238, 2023 WL 4163208

(U.S. June 26, 2023) . . . . . . . . . . . . . . . . . . . . . . . 10, 14

Pennsylvania v. Bd. of Dir. of City Trusts

of Phila.,

353 U.S. 230 (1957) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Reading v. North Hanover Twp., N.J., et al.,

No. 1:23-cv-01469-KMW-SAK (D.N.J.)

(filed March 15, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Reitman v. Mulkey,

387 U.S. 369 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Rust v. Sullivan,

500 U.S. 173 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Sanchez v. Pereira-Castillo,

590 F.3d 31 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . 10, 11

Shurtleff v. City of Bos., Massachusetts,

142 S. Ct. 1583 (2022) . . . . . . . . . . . . . . 6, 7, 8, 9, 15, 22

vi

Cited Authorities

Page

Siefert v. Hamilton Cnty.,

951 F.3d 753 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 11

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

143 S. Ct. 2141 (2023) . . . . . . . . . . . . . . . . . . . . 5, 19, 22

United States v. Stein,

541 F.3d 130 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . 11, 12

VDARE Found. v. City of Colorado Springs,

11 F.4th 1151 (10th Cir. 2021) . . . . . . . . . . . . . . . . . . . 13

Walker v. Sons of Confederate Veterans, Inc.,

576 U.S. 200 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Wandering Dago, Inc. v. Destito,

879 F.3d 20 (2d Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . 8

Watts v. Northside Indep. Sch. Dist.,

37 F.4th 1094 (5th Cir. 2022) . . . . . . . . . . . . . . . . 11, 13

Zhou v. Breed,

No. 21-15554, 2022 WL 135815

(9th Cir. Jan. 14, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 12

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. I . . . . . . . . . . . . . . 1, 2, 3, 5, 6, 7, 9, 21

1

IDENTITY AND INTEREST OF AMICUS CURIAE

Center for American Liberty (“CAL”) is a 501(c)(3)

nonprofit law firm dedicated to protecting civil liberties

and enforcing constitutional limitations on government

power.1 CAL has represented litigants in courts across

the country and has an interest in ensuring application

of the correct legal standard in First Amendment cases.

CAL also represents Rogan O’Handley, the Petitioner

in O’Handley v. Weber, 62 F.4th 1145, 1158 (9th Cir. 2023),

cert. pending, No. 22-1199 (filed on June 8, 2023), a case

involving claims against the state of California that are

similar to those here. In O’Handley, the Ninth Circuit

rejected Mr. O’Handley’s argument that the state of

California “significantly encouraged” Twitter (now X)

to censor his protected speech on its platform. Id. at

1158. The Ninth Circuit reached this conclusion based

on its erroneous holding that the government must offer

a private party “positive incentives” for that party’s

conduct to be fairly attributable to the state absent some

form of coercion. Ibid. Petitioners here make this same

argument. See Pet. Br. at 28. CAL submits this brief to

rebut this incorrect interpretation of the “significant

encouragement” test.

1. Amicus curiae states that no counsel for a party authored

this brief in whole or in part and that no party or counsel for a party

contributed money intended to fund the preparation or submission

of this brief. No person other than amicus curiae, its members, or

its counsel contributed money intended to fund the preparation or

submission of this brief.

2

SUMMARY OF ARGUMENT

Government censorship of private speech is one of the

core evils the First Amendment was designed to protect

against. The thorough opinions and extensive factual

findings by the courts below make one thing abundantly

clear: this evil flourishes. The government censorship

efforts laid bare in the record are of startling magnitude.

And while Petitioners may have acted in the name of

public safety, the record plainly shows that silencing

constitutionally protected speech was their ultimate

objective.

Petitioners do not, and cannot, contend otherwise.

Instead, they try to pass their conduct off as mere

expression of government opinion—as if pressuring

social media companies to engage in censorship is

constitutionally permissible because it is both necessary

for the government to do its job and is an acceptable

method of advancing the President’s agenda. But

constitutional constraints on government power cannot

be sidestepped so easily.

The government speech doctrine is narrow. It only

gives state actors breathing room to administer day-to-day

government functions and make the government’s official

position known. It was never intended, as Petitioners

argue, to be a license for the government to police private

speech. When the purpose of the government speech is to

abridge private speech, the government is no longer just

expressing an opinion or asserting a position. It is instead

engaged in regulation of private actors.

The government crosses this line when it “significantly

encourages” a social media platform to censor one of its

3

users. In that situation, the government is not merely

engaging in a public explication of its position or values,

but rather attempting to silence private voices or opinions.

Petitioners argue that significant encouragement can only

occur when the government offers “positive incentives”

to the private party who committed the offending action.

This cramped view of significant encouragement, based

on an overbroad view of the government speech doctrine,

would allow unconstitutional conduct to go unchecked.

Instead, significant encouragement should be viewed

through the proper inquiry for state action: whether

the private act can be reasonably attributable to the

government. Petitioners’ conduct satisfies this test.

First, the district court below found Petitioners

engaged in regular direct communication with the social

media companies that censored Respondents. These

communications were extensive, including thousands of

emails, phone calls, Zoom meetings, and old-fashioned

face-to-face conversations. The primary purpose of it all

was to censor certain content, much of which is protected

by the First Amendment.

Second, Petitioners conduct was reasonably likely

to induce the social media companies into censoring

protected speech, including that of Respondents. When

the government defines the guidelines for what should

and should not be allowed on a social media platform, it

is reasonable to expect that the platform will enforce its

guidelines against its users, even if it includes removing

protected speech. This is even more probable when,

like here, the government was regularly pressuring the

platforms to censor the specific content it disliked.

4

Third, the acts underlying the claims in this case

were regulatory in nature. Petitioners intended for

social media companies to remove certain content and

speakers from their platforms—an act directly impacting

third parties. By prohibiting certain opinions from the

modern public square based on the government’s predefined criteria, social media companies are performing

a regulatory function for the government. And by

removing certain speakers from platforms based on the

government’s wishes, social media companies served as

the government’s lackeys.

Pet it ioner s’ a rg u ment s t o t he cont ra r y a re

unconvincing. Their contention that the government

only significantly encourages a private actor when it

offers “positive incentives” would allow a vast amount of

government censorship efforts to go unchecked. According

to Petitioners, so long as the government was not using

a stick—which could give rise to state action under

the coercion test—or a carrot in the form of “positive

incentives,” it would be free to encourage, goad, or

pressure a private actor to perform unconstitutional acts

that the government could never lawfully achieve on its

own. Such a result is at odds with what the state-action

doctrine is designed to protected against.

Government-induced censorship of protected speech

is constitutionally suspect in all situations, even when

the government claims it is merely expressing its own

opinion. And when the government induces censorship

through significant encouragement, it crosses the line

from speaking to regulating. Because Petitioners did that

here, the Court should affirm the injunction entered below.

5

ARGUMENT

This case reflects a growing trend of government

actors using the pretext of “government speech” as an

excuse to regulate and censor private expression online.

Pet. Br. at 2, 14, 23–29. See also O’Handley, 62 F.4th

1145, cert. pending, No 22-1199 (filed on June 8, 2023)

(“Flagging a post that potentially violates a private

company’s content-moderation . . . is a form of government

speech. . . .”); Hart v. Facebook, Inc., No. 22-cv-737-CRB,

2023 WL 3362592 (N.D. Cal. May 9, 2023), appeal filed,

No. 23-15858 (9th Cir.); Reading v. North Hanover Twp.,

N.J., et al., No. 1:23-cv-01469-KMW-SAK (D.N.J.) (filed

March 15, 2023). Like the government defendants in

other cases involving censorship of private online speech,

Petitioners here claim they are merely communicating

the government’s opinion when they encourage social

media companies to suppress certain content. Pet. Br. at

23–25. Whatever label Petitioners attach to their conduct,

the ultimate goal is clear: remove disfavored opinions

from public discourse. This is quintessential government

censorship.

Petitioners’ argument to the contrary stretches the

government speech doctrine well beyond its purpose. “The

Constitution deals with substance, not shadows, and [its]

prohibition[s] [are] levelled at the thing, not the name.”

Students for Fair Admissions, Inc. v. President & Fellows

of Harvard Coll., 143 S. Ct. 2141, 2176 (2023) (quotation

marks omitted) (quoting Cummings v. Missouri, 71 U.S.

277, 325 (1867)). Government speech may not induce a

private intermediary to regulate speech protected by the

First Amendment. This includes when the government

6

induces censorship by significantly encouraging it, as

happened here.

I.

THE GOVERNMENT MAY NOT SIGNIFICANTLY

ENCOURAGE PRIVATE ACTORS TO CENSOR

PROTECTED SPEECH

G over n ment defenda nt s rout i nely r a i se t he

“government speech” doctrine as a defense to First

Amendment claims. E.g., Pet. Br. at 2; O’Handley, 62

F.4th at 1163 (holding government communication seeking

removal of content on social media website government

speech); Gundy v. City of Jacksonville Fla., 50 F.4th 60, 80

(11th Cir. 2022) (holding pastor’s invocation at government

meeting government speech). Indeed, the government’s

own speech “is exempt from First Amendment scrutiny.”

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553

(2005). But while the government speech doctrine provides

some cover for government officials to implement policy

and convey the government’s position, it does not allow the

government to “regulate private expression.” Shurtleff v.

City of Bos., Massachusetts, 142 S. Ct. 1583, 1589 (2022).

This prohibition includes significantly encouraging private

actors to censor private speech.

A.

The Government Speech Doctrine does not

permit regulation of protected speech.

The gover nment speech doctr ine ref lects an

understanding that, to function properly, the government

must adopt and express positions on a wide array of issues.

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 468

(2009); see also Matal v. Tam, 582 U.S. 218, 234 (2017)

(“The Free Speech Clause does not require government

7

to maintain viewpoint neutrality when its officers and

employees speak about [government programs].”).

The government must have some latitude to “speak for

itself,” even when private citizens may find its opinions

controversial. Bd. of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217, 229 (2000).

Since its inception, however, the doctrine has been

used sparingly, Tam, 582 U.S. at 235 (observing the

government speech doctrine “is susceptible to dangerous

misuse”), and almost exclusively as a shield against

liability for First Amendment violations committed during

the administration of routine government functions.

This Court’s government-speech cases illustrate this

point, as they focus on protecting the government from

claims of viewpoint discrimination based on things like

how the government chooses to appropriate funds, Rust

v. Sullivan, 500 U.S. 173, 178–83 (1991), which official

monuments and statues the government chooses to

display on its property, Summum, 555 U.S. at 467, and

governmental expression on specialty license plates,

Walker v. Sons of Confederate Veterans, Inc., 576 U.S.

200, 208 (2015). Underlying each of these cases is the

general understanding that “the government must be able

to ‘promote a program’ or ‘espouse a policy’ in order to

function.” Shurtleff, 142 S. Ct. at 1587 (quoting Walker,

576 U.S. at 208)).

But “government speech” has its limits. While the

government may advocate for its policy preferences, it

may not use its own speech to indirectly regulate private

speech that it could not regulate directly. Bantam Books,

Inc. v. Sullivan, 372 U.S. 58 (1963) (holding government

may not inf luence distribution of books by private

8

booksellers); Wandering Dago, Inc. v. Destito, 879 F.3d

20, 30 (2d Cir. 2018) (observing “government speech”

is often more “properly characterized as viewpointbased regulation of private speech”); Am. Freedom Def.

Initiative v. Suburban Mobility Auth. For Reg’l Transp.,

978 F.3d 481, 489 (6th Cir. 2020) (“The Supreme Court

has long followed different rules for state actions that

merely fail to promote speech as compared to those that

affirmatively regulate it.” (emphasis deleted)). The “real

question in government-speech cases [is often] whether

the government is speaking instead of regulating private

expression.” Shurtleff, 142 S. Ct. at 1595 (Alito, J.,

concurring); see also Otto v. City of Boca Raton, Fla., 981

F.3d 854, 864 (11th Cir. 2020) (holding the government

speech doctrine does not shield against claims based

on “bias, censorship or preference regarding [another]

speaker’s point of view” (citation omitted)).

This Court has yet to announce a definitive test to

determine when government speech becomes government

regulation. Shurtleff, 142 S. Ct. at 1589 (“Our review [for

government speech] is not mechanical; it is driven by a

case’s context rather than the rote application of rigid

factors.”). One important factor, however, is the “identity

of the speaker.” Id. at 1595–96 (Alito, J., concurring); see

also id. at 1589 (identifying “the public’s likely perception

as to who (the government or a private person) is

speaking”). The key question is “whether the government

is actually expressing its own views” or whether it is

surreptitiously “regulat[ing the] private speech” of others.

Ibid. (Alito, J., concurring). And if the government actor

relies “on a means that abridges private speech” when

conveying a governmental opinion, the government speech

turns into regulation. Id. at 1598 (Alito, J., concurring).

9

In that situation, the real speaker is a private party the

government has censored, not the government, and the

“government speech” is really the “regulation of private

speech.” Id. at 1596 (Alito, J. concurring).

If the speech of a government official merely effects

policy or advocates for an official position, view, or value,

it is not subject to First Amendment scrutiny. Walker,

576 U.S. at 208. But if it is intended to silence or suppress

private speech, it is regulation, and the government speech

doctrine has no application. Such regulation—like any

other—triggers First Amendment scrutiny.

B. Sig nificant encouragement transforms

government speech into government regulation.

The government regulates speech when it significantly

encourages a private actor to engage in censorship. Blum

v. Yaretsky, 457 U.S. 991, 1004 (1982). Like coercive

conduct, significant encouragement by the government

renders the government responsible for the otherwise

private acts. Reitman v. Mulkey, 387 U.S. 369, 375 (1967)

(holding “prohibited state involvement could be found even

where the state can be charged with only encouraging,

rather than commanding” (cleaned up)).

A constitutional violation generally requires some

form of state action. See Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).

Despite this requirement, this Court’s description of

what constitutes state action has “not been a model of

consistency.” Edmonson v. Leesville Concrete Co., 500

U.S. 614, 632 (1991) (O’Connor, J., dissenting).

10

This Court recognizes various “tests” to help

determine whether state action exists. See, e.g., Blum,

457 U.S. at 1004 (significant encouragement); Dennis v.

Sparks, 449 U.S. 24, 27 (1980) (joint action); Jackson v.

Metro. Edison Co., 419 U.S. 345, 351 (1974) (nexus); Flagg

Bros. v. Brooks, 436 U.S. 149, 164 (1978) (compulsion);

Marsh v. Alabama., 326 U.S. 501, 507 (1946) (public

function). But “each test really gets at the same issue,”

Janny v. Gamez, 8 F.4th 883, 919 (10th Cir. 2021)—namely,

whether the offending action can be “fairly attributable”

to the government, Brentwood Acad., 531 U.S. at 295.

Failure to satisfy one of the “tests” does not preclude

finding state action so long as the “fairly attributable”

standard is met. Ibid.

Under the significant encouragement test, private

action can be attributable to the government when the

government “provided such significant encouragement,

either overt or covert, that the choice must in law be

deemed to be that of the State.” Blum, 457 U.S. at 1004.

Government conduct can satisfy this test even if it is not

“threatening” or “coercive” in nature. See ibid. (describing

coercion test and significant encouragement test in

disjunctive); see also Reitman, 387 U.S. at 381 (holding

state constitutional amendment was state action because

it “significantly encourage[d] and involve[d] the State in

private discriminations”); Peltier v. Charter Day Sch.,

Inc., 37 F.4th 104, 115 n.11 (4th Cir. 2022) (en banc) (Milano

Keenan, J, concurring), cert. denied, No. 22-238, 2023

WL 4163208 (U.S. June 26, 2023) (“[A] state’s exercise of

coercive power or compulsion is not a requirement for a

finding of state action.”). 2

2 .  The Circuits are split on whether the “sig nif icant

encouragement” test is best viewed under the rubric of the

compulsion test or the nexus test. Compare Sanchez v. Pereira-

11

This Court has yet to identify definitive factors for

significant encouragement. But this test is well-recognized

among the Circuits, including in the Fifth Circuit below.

Watts v. Northside Indep. Sch. Dist., 37 F.4th 1094,

1097–1098 (5th Cir. 2022); see also Janny, 8 F.4th 883, 926;

Siefert v. Hamilton Cnty., 951 F.3d 753, 760 (6th Cir. 2020);

Sanchez v. Pereira-Castillo, 590 F.3d 31, 52 (1st Cir. 2009);

United States v. Stein, 541 F.3d 130, 147 (2d Cir. 2008);

Air Line Pilots Ass’n, Intern. v. Dep’t of Aviation of City

of Chicago, 45 F.3d 1144, 1150 (7th Cir. 1995); Franz v.

United States, 707 F.2d 582, 592 (D.C. Cir. 1983). Amicus

interprets these cases to mean that, under the significant

encouragement test, the government can be liable for a

private actor’s conduct when (1) the government directly

expressed to the private party a desire that the private

party take some action; (2) the circumstances surrounding

the communication are such that it was reasonably likely

the communication would induce the private party to

commit the offending action; and (3) the offending action

is regulatory in nature.

1. For the government to “significantly encourage”

a pr ivate actor, there must f irst be some direct

communication between the two parties in which the

government expresses the desire that the private actor

take some action. The communication can take many

forms. See, e.g., La. Div. Sons of Confederate. Vet. v. City

of Natchitoches, 821 F. App’x 317, 322 (5th Cir. 2020) (Elrod

J., concurring) (letter from city mayor); Stein, 541 F.3d

at 147 (memo from U.S. Attorney’s office); Janny, 8 F.4th

Castillo, 590 F.3d 31, 52 (1st Cir. 2009) (compulsion) with United

States v. Stein, 541 F.3d 130, 147 (2d Cir. 2008) (nexus). This dispute

is more semantic than real. Either way, the inquiry is the same: did

the government induce the private actor to commit the offending

action through significant encouragement?

12

at 926 (spoken communication between parole officer and

head of private rehabilitation group). For purposes of

this prong of the test, there is no direct communication

when the government makes exclusively public comments

expressing a desire that a private actor take some action,

even if those public comments prompt the private actor to

take the offending conduct. Zhou v. Breed, No. 21-15554,

2022 WL 135815, *1 (9th Cir. Jan. 14, 2022) (holding no

state action when “public officials criticized a billboard or

called for its removal” in public statements).

2. Next, the circumstances surrounding the

governmental communication must be such that it was

reasonably likely the communication would induce the

private party to commit “the specific conduct of which

the plaintiff complains.” Blum, 457 U.S. at 1004; see also

Paige v. Coyer, 614 F.3d 273, 280 (6th Cir. 2010) (holding

government actor may be liable if private conduct was

“reasonably foreseeable consequence” of government

action). This factor is assessed on a case-by-case basis and

can include things like the content of the communication,

the authority of the person making the communication,

the authority of the person receiving the communication,

the regularity of the communication, the circumstances

under which the communication was made, and other

facts relevant to inducement. See, e.g., Stein, 541 F.3d at

148 (holding significant encouragement occurred when

the government “knew full well” that its conduct would

induce the private party to commit the offending action).

In evaluating this factor, it is important to remember

that “[m]ere [government] approval of or acquiescence in

the initiatives of a private party is not sufficient.” Blum,

457 U.S. 1004 (citation omitted). Nor will it usually be

13

enough for the government merely to express a desire or

hope that the private actor commit the action. See VDARE

Found. v. City of Colorado Springs, 11 F.4th 1151, 1164

(10th Cir. 2021) (holding that letter from mayor expressly

disclaiming any regulatory authority was not significant

encouragement).

Some courts have suggested that communications by

government actors may only give rise to liability when

they cross the line between “an attempt to convince and

an attempt to coerce.” Nat’l Rifle Ass’n of Am. v. Vullo,

49 F.4th 700, 717 (2d Cir. 2022) (emphases added), cert.

granted, No. 22-842; see also O’Handley, 62 F.4th at 1163

(drawing distinction between governmental “coercion

and persuasion”). This approach, however, impermissibly

collapses the significant encouragement test into the

coercion test, which this Court has explicitly recognized

as a separate test for state action. Blum, 457 U.S. at

1004; Reitman, 387 U.S. at 375. And under the significant

encouragement test, efforts to convince may give rise

to state action so long as they are of the type that are

reasonably likely to induce the offending act. Paige, 614

F.3d at 280.

3. Finally, the offending act induced by the

government must be one that is regulatory in nature.

This requirement means the private actor must direct

its conduct toward a third party. See, e.g., Watts, 37 F.4th

at 1097-1098 (football coach ordering players to tackle

referee); Sanchez, 590 F.3d at 52 (corrections officers

encouraging doctor to perform procedure); Janny, 8 F.4th

at 925–26 (parole officer encouraging private program

to enroll parolee). It is not enough for the government to

induce a private party to engage in conduct that directly

14

affects only the party itself. For example, encouragement

from the government for the private party to adopt an

internal corporate energy efficiency policy would not

constitute significant encouragement for purposes of a

state-action analysis. While such a policy may have some

impact on third parties, it is not directed at third parties

in a way that regulates their activity or penalizes them

for engaging in it. Ciraci v. J.M. Smucker Co., 62 F.4th

278, 284 (6th Cir. 2023) (concluding private company

that adopted federally mandated employee vaccination

requirement did not engage in state action where

there was no allegation that the government induced

the company to deny plaintiffs’ request for a religious

accommodation). Unless the government has induced

the private party to direct its conduct toward a third

party, the conduct at issue cannot be considered indirect

regulation by the government. See., e.g., Siefert, 951 F.3d

at 760 (encouraging hospital not to release minor patient).

Each state-action inquiry will require its own factbound analysis. Brentwood Acad., 531 U.S. at 932. The

three factors discussed above provide a framework

for distinguishing legitimate government speech from

impermissible government regulation, the latter of which

can result from significant encouragement even when

there is no indication of government threats or other forms

of coercion. Peltier, 37 F.4th at 115.

II. THE GOVERNMENT REGULATED PROTECTED

SPEECH HERE

Even setting aside the numerous examples of

Petitioners’ coercive conduct, the federal actors here

engaged in a sustained campaign to encourage social

15

media companies to silence protected speech. C.A.

ROA.26463–26540. Petitioners attempt to cast their

conduct as mere expression of the federal government’s

position, which, they claim, is necessary to administrator

the day-to-day functions of government and advance the

President’s policy agenda. Pet. Br. at 23–29. But while

expressing government opinion, Petitioners relied “on

a means that abridges private speech” to advance their

goals. Shurtleff, 142 S. Ct. at 1598. Petitioners therefore

crossed the line separating speaking from regulating

by significantly encouraging private social media

companies to censor protected speech—including that of

Respondents. Ibid.

First, Petitioners engaged in substantial direct

communications—over months and years—with social

media companies, repeatedly requesting that they

engage in censorship and take other measures to combat

the dissemination of “disinformation.” See, e.g., C.A.

ROA.26554 (“White House Defendants constantly ‘flagged’

for Facebook and other social media platforms posts the

White House Defendants considered misinformation.”);

C.A. ROA.26554 (“The White House scheduled numerous

Zoom and in-person meetings with social-media officials to

keep each other informed about the companies’ efforts to

suppress disinformation.”); C.A. ROA.26556 (“Numerous

calls and meetings took place between Surgeon General

Defendants and private social media companies.”).

Seco n d, the ci rcu mst a nces su r rou nd i ng the

governmental communications are such that it was

reasonably likely they would induce social media and

other tech companies to commit the actions they did. The

communications at issue are far more sustained than a

16

mere passing comment or a series of public statements.

C.A. ROA.26549 (“As exhaustedly listed [in the injunction

opinion], Defendants ‘significantly encouraged’ the socialmedia companies to such extent that the decision should

be deemed to be the decisions of the Government.”). They

included meetings between high-ranking government

officials and social media executives and engineers

in which social media companies were pressured to

“do more.” E.g., C.A. ROA.26556 (“[Surgeon General]

Advisory publicly called on social-media companies ‘to do

more’ against COVID misinformation Superspreaders.”).

And they included a barrage of behind-the-scenes requests

from powerful government officials, including requests to

censor specific content. C.A. ROA.26549–26569.

The substantial fact findings by the district court

below make clear that the government intended private

actors to take the specific act of censoring protected speech

on their platforms. C.A. ROA.26549–26569. Obtaining

the removal of disfavored opinions from social media

platforms was the primary reason for Petitioners’ regular

communication with the social media companies. E.g., C.A.

ROA.26568 (“In partnership with these non-governmental

organizations, the State Department Defendants flagged

and reported postings of protected free speech to the

social-media companies for suppression.”). The federal

actors were aware of the substantial influence they had

over social media companies to combat “misinformation.”

E.g., C.A. ROA.26559 (“By telling social-media companies

that posted content was false, the CDC Defendants knew

the social-media company was going to suppress the

posted content.”); C.A. ROA.26562 (“Through meetings,

emails, and in-person contacts, the FBI intrinsically

involved itself in requesting social-media companies to

17

take action regarding content the FBI considered to be

misinformation.”). And these communications triggered

the offending conduct complained of here, including the

changing of social media company guidelines, the removal

of specific posts or categories of posts, and the banning of

specific speakers. C.A. ROA.26549–26569.

It does not matter that the government did not always

target specific speakers when it encouraged social media

companies to censor users. See, e.g., Barrows v. Becerra,

24 F.4th 116, 139 (2d Cir. 2022) (holding state action existed

where it affected Medicaid recipients generally). The

objective was the censorship that the government could

not achieve directly, which is the precise conduct that

caused Respondents’ harm.

Third, the actions complained of by Respondents

were regulatory in nature. The overall objective driving

Petitioners’ communication with social media companies

was censorship of third-party speech and removal of

certain speakers from these platforms. The government

was inducing private actors into performing these

regulatory functions for it. C.A. ROA.26559 (“The

CDC became the ‘determiner of truth’ for social-media

platforms, deciding whether COVID-19 statements made

on social media were true or false.”); C.A. ROA.26564

(observing Appellant CISA “apparently encouraged

and pressured social-media companies to change their

content-moderation policies and flag disfavored content”);

C.A. ROA.26568 (“The State Department Defendants

and CISA Defendants both partnered with organizations

whose goals were to ‘get around’ First Amendment

issues.”); C.A. ROA.26564 (“[T]he evidence shows that the

CISA Defendants met with social-media companies to both

18

inform and pressure them to censor content protected by

the First Amendment.”). Censoring speech on a specific

platform based on its failure to conform with certain

standards or criteria is fundamentally “regulatory” in

nature.

Petitioners’ arguments contort the significant

encouragement test to suit their aims, asserting it only

applies in situations where the government offers “positive

incentives.” Pet. Br. at 28 (quoting O’Handley, 62 F.4th at

1157–58). In their view, “legitimate attempts to convince”

are, in all cases, merely government speech that cannot

trigger First Amendment scrutiny. Ibid.

But this formulation of significant encouragement

allows the government to engage in unfettered regulation

of private speech so long as a private actor is the direct

censor. If the government is not acting in a coercive

manner or does not offer the private party “positive

incentives,” the government can effectively “induce,

encourage or promote private persons to accomplish what

it is constitutionally forbidden to accomplish.” Norwood v.

Harrison, 413 U.S. 455, 465 (1973). This view of significant

encouragement would create a gap in the state-action

doctrine where the government would be free to pressure

or “convince” private parties through the implicit power

of the government to do its bidding with no fear of

consequence. Such a narrow interpretation of the state

action doctrine allows the government’s unconstitutional

conduct to hide in the “shadows.” Cummings, 71 U.S. at

325.

Indeed, it is worth noting that, in O’Handley, the

Ninth Circuit did not cite a single case in support of its

19

pronouncement that significant encouragement requires

the existence of “positive incentives.” 62 F.4th at 1158.

The state of California created an entire agency with the

sole purpose of monitoring online speech, yet the Ninth

Circuit still resisted the obvious: this was constitutionally

impermissible regulation of protected speech. O’Handley,

No 22-1199, Pet. at 31 (“The Ninth Circuit’s decision is

a blueprint for state officials who wish to suppress or

retaliate against views they disfavor.”).

Under the formulation of significant encouragement

advanced in this brief, government actors would not create

state action merely by publicly denouncing protected

speech or chastising companies for pushing false or

misleading speech. Nor would the president be precluded

generally from using the “bully pulpit” to seek to persuade

Americans, and American companies, to act in ways that

in the President’s view “advance the public interest.” Pet.

Br. at 14, 34, 45. Instead, only direct communication from

the government to private actors with the intent and effect

of inducing censorship would be prohibited. Moreover, the

impact of this rule on government functioning would be

minimal, because it would only be implicated when the

government’s conduct interferes with a constitutionally

protected interest.

Petitioners cannot hide behind the pretext of

“government speech” to accomplish indirectly something

that they could not accomplish directly. See Students for

Fair Admissions, Inc., 143 S. Ct. at 2176. And speech by

government actors becomes regulation of speech when it

turns into “significant encouragement.” Blum, 457 U.S.

at 1004. Petitioners repeatedly crossed this line here by

inducing censorship. The government’s conduct was not

20

permissible government speech but the impermissible

regulation of speech, plain and simple.

III. THE FIFTH CIRCUIT’S TEST IMPERMISSIBLY

COLLAPSES SIGNIFICANT ENCOURAGEMENT

INTO CONTROL

The Fifth Circuit affirmed the district court’s finding

that some of Petitioners’ conduct amounted to significant

encouragement—meaning the challenged censorship

decisions by social media platforms amounted to state

action in some instances. See J.A. at 49, 59–62, 64–68. But

the test the Fifth Circuit adopted is unduly narrow and

allows a substantial amount of government censorship to

occur without consequence.

The Fi fth Ci rcuit concluded that sig ni f icant

encouragement arises only in those situations where the

government exercises “some active, meaningful control

over the private party’s decision.” Id. at 34. To satisfy this

test, the control must be “active (not passive),” and it must

be “meaningful” in the sense that it is “impactful enough

to render [the government] responsible” for the “private

party’s challenged decisions.” Id. at 35–36 (emphasis

deleted). This could be through “entanglement in a party’s

independent decisionmaking” or by “direct involvement

in carrying out the decision itself.” Ibid. Only then is

there a sufficiently “close nexus” for the government’s

encouragement to be sufficient to transform private

decisions into state action. Ibid.

This view of significant encouragement is too narrow

because it collapses “significant encouragement” into

the “control” test applied in cases like Evans v. Newton,

382 U.S. 296 (1966), and Pennsylvania v. Bd. of Dir. of

21

City Trusts of Phila., 353 U.S. 230 (1957) (per curiam).

Those cases evaluated whether the government exercised

“management or control” over the private entity. Evans,

382 U.S. at 301; City Trusts, 353 U.S. at 231 (noting

that governing board “operates” private entity). But

that test is materially indistinguishable from the Fifth

Circuit’s “significant encouragement” test, impermissibly

rendering the latter a legal nullity. And as discussed,

“significant encouragement” occurs if the government

intends to use the private party to regulate the speech or

actions of others, regardless of whether the government

exercises control over the private entity. In other words,

the intent and impact of the government action are the

primary considerations when determining whether state

action is present under the “significant encouragement”

test—not whether the government had sufficient control

over the private party. See Blum, 457 U.S. at 1004; see

also Adickes, 398 U.S. at 171 (holding the government

may not achieve unconstitutional objectives “by direct

action or through the medium of others who are under

State compulsion to do so”); Bantam Books, 372 U.S.

at 72 (focusing on the government’s “scheme of state

censorship” when searching for state action).

Under the Fifth Circuit’s test, the government

would be free to pressure social media platforms into

censoring protected speech so long as it kept its nose out

of the decision-making process that goes into censoring

specific content. The government could continue to identify

specific posts, speakers, and categories of content it wants

censored, and so long as it passed the torch onto the

private actor to do its dirty work, the government could

walk away with clean hands. But the First Amendment

constrains the government’s ability to regulate protected

speech, regardless of whether it is entangled in, entwined

22

with, or controls the private party’s decision-making

process. Shurtleff, 142 S. Ct. at 1595–96; Students for Fair

Admissions, Inc., 143 S. Ct. at 2176. If the objective and

effect is to use private parties to censor protected speech,

the government cannot pass on its regulatory agenda to

private actors to implement and then step away as if it was

not involved. The government significantly encouraged

the censorship—that is enough.

CONCLUSION

The district court correctly observed that if “there

were ever a case where the ‘significant encouragement’

theory should apply, this is it.” C.A. ROA.26548. This

Court should affirm the preliminary injunction entered

below.

February 8, 2024

Respectfully submitted,

Mark Trammell

Josh Dixon

Eric Sell

Center for A merican

Liberty

K arin Sweigart

Mark Meuser

Dhillon Law Group, Inc.

177 Post Street, Suite 700

San Francisco, CA 94108

Harmeet K. Dhillon

Counsel of Record

Center for A merican

Liberty

1311 South Main Street,

Suite 207

Mount Airy, MD 21771

(703) 687-6212

harmeet@libertycenter.org

Counsel for Amicus Curiae

Center for American Liberty