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

U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT

────────

BRIEF AMICI CURIAE

OF THE KENNEDY PLAINTIFFS

IN SUPPORT OF RESPONDENTS

────────

MARY HOLLAND

Counsel of Record

Roger I. Teich

Children’s Health Defense

853 Franklin Ave, Suite 511

Franklin Lakes, NJ 07417

202-854-1310

mary.holland@childrenshealthdefense.org

Jed Rubenfeld

1031 Forest Rd.

New Haven, CT 06515

Attorneys for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………..

ii

INTERESTS OF AMICI………….…………..........

1

INTRODUCTION…………………..………………..

1

SUMMARY OF ARGUMENT……………………...

2

ARGUMENT………………………………………….

4

I.

The Government’s censorship campaign

is unconstitutional regardless of

whether it converts social media

censorship into state action………………….

4

II.

Under Skinner, state action must be

found here………………………………………

9

III.

An Injunction Barring Federal Agents from

Privately Communicating with Social

Media Companies Encouraging Censorship

of Constitutionally Protected Speech Would

Be Narrowly Tailored and Would Not

Impinge on Petitioners’ Free Speech Rights.. 12

CONCLUSION……………………............................ 15

i

TABLE OF AUTHORITIES

Cases

Abrams v. United States, 250 U.S. 616 (1919) ........ 15

Associated Press v. U.S., 326 U.S. 1 (1945) ............. 15

Blum v. Yaretsky, 457 U.S. 991 (1982) ...................... 7

Columbia Broad. Sys., Inc. v. Democratic Nat’l

Comm.,

412 U.S. 94 (1973) ................................................ 13

Evans v. Newton, 382 U.S. 296 (1966) ...................... 8

Garcetti v. Ceballos,

547 U.S. 410 (2006) .............................................. 13

Lochner v. New York, 198 U.S. 45 (1905) ................ 15

Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S.

Dist. LEXIS 114585 (W.D. La. July 4, 2023) ... 1, 14

Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S.

Dist. LEXIS 127620 (W.D. La. July 24, 2023) ....... 1

NAACP v. Hunt,

891 F.2d 1555 (11th Cir. 1990) ............................ 13

Norwood v. Harrison, 413 U.S. 455 (1973) ........... 2, 5

O’Handley v. Weber, 62 F.4th 1145 (9th. Cir. 2023) . 5

Packingham v. North Carolina, 582 U.S. 98 (2017) . 1

Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) .............................................. 13

Pruitt v. Pernell,

360 F. Supp. 2d 738 (E.D.N.C. 2005) ..................... 6

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ......... 7, 9

Rendell-Baker v. Kohn, 641 F.2d 14 (1st Cir. 1981) . 9

Richard v. City of Harahan,

6 F. Supp. 2d 565 (E.D. La. 1998) .......................... 6

ii

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) .............................................. 13

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S.

602 (1989)............................................................ 3, 9

Specht v. Jensen, 832 F.2d 1516 (10th Cir. 1987) ..... 6

Texas Div., Sons of Confederate Veterans, Inc. v.

Vandergriff,

759 F.3d 388 (5th Cir. 2014) ................................ 14

United States v. Davis, 482 F.2d 893 (9th Cir. 1973) 6

Vista-Graphics, Inc. v. Virginia Dep’t of

Transportation,

682 F. App’x 231 (4th Cir. 2017) .......................... 14

Statutes

47 U.S.C. § 230(c)(2)(A) .......................................... 3, 8

Other Authorities

Jed Rubenfeld, Are Facebook and Google State

Actors?, LAWFARE, Nov. 4, 2019, https://www.

lawfaremedia.org/article/are-facebook-and-googlestate-actors ........................................................... 11

Philip Hamburger, Is Social-Media Censorship a

Crime?, WALL ST. J., Dec. 13, 2022, https://www.

wsj.com/articles/is-social-media-censorship-acrime-section-241-us-code-government-privateconspiracy-civil-rights-speech-11670934266 ......... 2

iii

INTERESTS OF AMICI1

This brief is respectfully submitted by the

named Plaintiffs in Kennedy v. Biden, a closely

related action consolidated with the instant case in

the District Court below. (See Missouri v. Biden, No.

3:22-CV-01213, 2023 U.S. Dist. LEXIS 127620 (W.D.

La. July 24, 2023) (consolidating Kennedy v. Biden

with Missouri v. Biden).) One of the Kennedy

Plaintiffs is Robert F. Kennedy, Jr.; there may be no

individual in the country more heavily targeted for

social media censorship by the Federal Government

than Mr. Kennedy. (See, e.g., J.A. 114, 637, 793-94;

Plaintiffs-Respondents’ Response in Opposition to

Motion to Intervene 4-11; Missouri v. Biden, No. 3:22CV-01213, 2023 U.S. Dist. LEXIS 114585, at *13, 24,

30-32, 34, 49, 111 (W.D. La. July 4, 2023).)

INTRODUCTION

Perhaps it will seem like litigation hyperbole,

but the fate of the freedom of speech in America may

actually depend on this case.

Two recent developments, each extraordinary

in itself, have in combination created a peril to free

speech unprecedented in our history: (1) the rise of

behemoth social media platforms, which this Court

has called the “modern public square,”2 owned by

private companies exercising content-based control

over all that is said thereon; and (2) a concerted,

secret, highly successful campaign by the Federal

Government, copiously documented by the courts

1 No party, or counsel for any party, authored this brief in whole

or in part, and no one other than amici made a monetary

contribution to fund its preparation or submission.

2 Packingham v. North Carolina, 582 U.S. 98, 107 (2017).

1

below, to induce these platforms to censor protected

speech, including wholly accurate information and

core political opinion critical of Administration policy.

If the Court decides this case unwisely, it runs

the risk of approving “the most massive system of

censorship in the nation’s history”3—a brave new

world in which the Government can and will censor

dissent and dissenters by proxy, controlling what

hundreds of millions of Americans can say, see and

hear every day.

SUMMARY OF ARGUMENT

Most of the briefing in this case, as well as the

opinion under review, assumes that the First

Amendment claims here turn on whether the

Petitioners have shown state action. Accordingly, the

parties extensively discuss this Court’s state action

precedents, particularly those concerning “coercion”

and “joint activity.” Against this background, the

Kennedy Plaintiffs respectfully make three points.

First, that premise is incorrect. As a matter of

both precedent and principle, the Government’s

censorship campaign is unconstitutional regardless

of whether it crosses the state action tripwire. If this

were a First Amendment suit against the platforms

themselves, then the state action inquiry would

properly govern. But this is an injunctive suit against

governmental officers, and as the Court held in

Norwood v. Harrison, 413 U.S. 455, 465 (1973), it is

“axiomatic that [the] state may not induce, encourage

3 Philip Hamburger, Is Social-Media Censorship a Crime?, WALL

ST. J., Dec. 13, 2022, https://www.wsj.com/articles/is-socialmedia-censorship-a-crime-section-241-us-code-governmentprivate-conspiracy-civil-rights-speech-11670934266.

2

or promote private persons to accomplish what it is

constitutionally forbidden to accomplish.” Norwood

was not a state action case; its principle controls

regardless of whether any of the familiar state action

tests (coercion, joint activity, and so on) are satisfied.

And there can be no doubt that the Government has

done here exactly what Norwood proscribes: it has

deliberately sought to “induce, encourage [and]

promote” social media platforms to censor core

political speech the Government could not

constitutionally censor on its own. (See infra Point I.)

Second, if the Court does reach the state action

issue, “coercion” and “joint activity” need not be the

sole focus. The famous Section 230 of the

Communications Decency Act—immunizing social

media platforms against liability if they censor

“constitutionally protected” speech, 47 U.S.C. §

230(c)(2)(A)—should play a decisive role as well. In

fact, the closest and most important precedent for the

instant case is Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602 (1989), which turned not on

coercion but on a similar federal immunity provision.

In Skinner, the Court found that private railways’

urine testing of their employees was state action

where the Federal Government had: (1) “removed all

legal barriers to the testing”—i.e., had immunized the

railways against liability if they performed the tests;

(2) “made plain … its strong preference for [the]

testing”; and (3) expressed its “desire” to “participate”

in the testing. Id. at 615. The same three elements are

present here. The Federal Government has: (1)

through Section 230, “removed all legal barriers” to

social media censorship of constitutionally protected

speech; (2) repeatedly made plain its “strong

3

preference” for such censorship; and (3) endeavored to

participate

directly

and

systematically

(as

established by the facts found below) in deciding what

specific speech and speakers the platforms should

censor. Indeed, on every front, the case for a state

action finding here is stronger than in Skinner. (See

infra Point II.)

Finally, the Kennedy Plaintiffs respectfully

suggest that a slightly narrower injunction would

obviate certain objections raised by Petitioners. In

their preliminary injunction motion below (still

pending, undecided, in the District Court), the

Kennedy Plaintiffs asked for an injunction barring

Petitioners from privately communicating, in their

official capacities, with social media companies with

the purpose of encouraging censorship of protected

speech. Such an injunction would as a matter of law

not impinge one iota on Petitioners’ speech rights,

would leave Petitioners free to publicly express any

opinions they wished, and would be narrowly tailored

to the constitutional violation at issue here. (See infra

Point III.)

ARGUMENT

I.

The Government’s censorship campaign is

unconstitutional regardless of whether it

converts social media censorship into

state action.

Much of the briefing in this case, as well as the

opinion under review, focuses on whether the

innumerable communications (detailed by the courts

below) between federal actors and social media

companies satisfy one or more of the familiar state

action tests—coercion, joint activity, entwinement,

4

nexus, and so on. The Court need not reach these

arguments. As a matter of precedent and principle,

the

Government’s

censorship

campaign

is

unconstitutional regardless of whether it converts

social media censorship into state action.

When a plaintiff sues a private actor for a

constitutional violation, the state action inquiry

properly governs because the Constitution (almost

invariably) does not restrain private party conduct. In

such cases, the plaintiff must prove that the

seemingly private defendant was in actuality a state

actor, and “[d]etermining whether this is one of the

exceptional cases in which a private entity will be

treated as a state actor for constitutional purposes

requires [courts] to grapple with the state action

doctrine.” O’Handley v. Weber, 62 F.4th 1145, 1156

(9th. Cir. 2023). Such a determination typically turns

on satisfaction of one or more of the familiar state

action tests, such as coercion, joint activity,

conspiracy, nexus, or public function. See, e.g., id. at

1157-58.

But where, as here, suit is brought against

governmental defendants, the state action doctrine

is a misfit, both logically and constitutionally.

Governmental defendants are by definition state

actors. The question in such cases is not whether the

defendants are state actors; of course they are. The

sole question is whether they have acted

constitutionally or unconstitutionally.

And it is “axiomatic,” as this Court held fifty

years ago, that governmental defendants violate the

Constitution when they knowingly seek to “induce,

encourage or promote private persons to accomplish

what [the government] is constitutionally forbidden

5

to accomplish.” Norwood v. Harrison, 413 U.S. 455,

465 (1973) (citation omitted).

The Norwood axiom is indispensable to the

preservation

of

every

constitutional

right.

“Constitutional limitations on governmental action

would be severely undercut if the government were

allowed to actively encourage conduct by ‘private’

persons or entities that is prohibited to the

government itself.” U.S. v. Davis, 482 F.2d 893, 904

(9th Cir. 1973). A police officer, knowing that he is

constitutionally barred from searching the trunk of a

particular car, cannot evade the Fourth Amendment

by simply asking a passerby to perform the search

instead. This rule, which is not tethered to traditional

state action analysis (it does not inquire into

“coercion,” “conspiracy,” “public function,” and so on),

is routinely enforced by lower courts. See, e.g., Specht

v. Jensen, 832 F.2d 1516, 1523 (10th Cir. 1987)

(“When a government official affirmatively facilitates

or encourages an unreasonable search performed by a

private person, a constitutional violation occurs.”);

Pruitt v. Pernell, 360 F. Supp. 2d 738, 746 (E.D.N.C.

2005) (“it is also well settled that state actors must

not affirmatively facilitate or encourage an

unreasonable search by a private person”); Richard v.

City of Harahan, 6 F. Supp. 2d 565, 573 (E.D. La.

1998) (same).

Norwood itself did not depend or rest on state

action doctrine. The prohibitory language used by the

Court in Norwood (“induce, encourage or promote”) is

markedly different from and broader than the

familiar language of state action doctrine (“coercion,”

“joint activity,” “conspiracy,” and so on). Thus

Norwood’s axiomatic principle can be violated even

6

when state action (by the private party) has not been

shown. This is clear from the facts of Norwood, which

was not a state action case.

In Norwood, this Court enjoined Mississippi’s

policy of providing certain free textbooks to whitesonly private schools. See 413 U.S. at 466. The phrase

“state action” does not appear in the case. No claim

was made or could have been made that the state’s

provision of textbooks was somehow coercive. Nor

could mere provision of free textbooks convert a

private school into a state actor under this Court’s

joint activity or entwinement precedents. Cf., e.g.,

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (private

school’s receipt of over 90% of funding from

government did not make school a state actor).

Norwood did not hold that the private whitesonly schools in that case had been turned into state

actors. On the contrary, the Norwood Court held that

the Constitution had been violated, and an injunction

had to issue, without reliance on state action doctrine

and without applying any state action test. The Court

should do the same here.

Blum v. Yaretsky, 457 U.S. 991 (1982), which

the Federal Defendants rely on heavily to argue that

Respondents must prove coercion, is not to the

contrary. In Blum, Medicaid-eligible patients brought

a procedural Due Process challenge against their

transfer to lower levels of medical care in private

nursing homes. Although the proper level of care was

decided by private physicians at the nursing homes,

plaintiffs did not sue the physicians or the homes;

instead they sued the state agency that had reduced

their Medicaid benefits on the basis of the transfer.

This Court dismissed the patients’ constitutional

7

claims, finding that the physicians’ decision as to

appropriate medical care was not state action because

it had not been coerced or otherwise controlled by the

state. See 457 U.S. at 995-96, 1005-10.

Blum in no way undercuts Norwood. There was

no claim in Blum that state agents had deliberately

sought to violate constitutional rights by proxy. There

was no allegation that state agents had knowingly

sought to induce or encourage any nursing homes or

physicians to lower the level of care for any particular

patient (and a fortiori no claim that they had done so

to evade Due Process constraints). Thus Blum does

not hold that the coercion test—or some other state

action test—must still be satisfied even when

governmental defendants commit a Norwood

violation (i.e., deliberately seek to evade

constitutional rights by inducing private parties to do

what the government may not). In Blum there was no

alleged Norwood violation.

Sixty years ago, in Evans v. Newton, 382 U.S.

296 (1966), this Court held that the city of Macon,

Georgia, could not evade the Equal Protection Clause

by transferring ownership of a whites-only city park

to private parties who would maintain it as a whitesonly facility. The Evans Court tried to explain its

decision in difficult-to-follow “state action” terms, but

today Evans is seen (correctly) as holding that

government cannot be allowed to deliberately evade

the Constitution through the use of private party

proxies. “[S]hould a public institution be placed in

private hands with the actual purpose of evading

constitutional requirements, the courts may look

beyond the formal structure of the institution” and

issue an injunction regardless of whether traditional

8

state action doctrine is satisfied. Rendell-Baker v.

Kohn, 641 F.2d 14, 23 (1st Cir. 1981) (emphasis

added) (citing Evans), aff’d, 457 U.S. 830 (1982).

The same anti-evasion principle applies here.

In “the vast democratic forums of the Internet,” Reno

v. American Civil Liberties Union, 521 U. S. 844, 868

(1997), Federal agents cannot be permitted to censor

protected speech by deliberately seeking to “induce,

encourage or promote,” Norwood, 413 U.S. at 465,

such censorship by the private companies that control

those forums. If the judiciary does not intervene on

this record, a brave new free speech world awaits us,

in which the Government can and will censor dissent

and dissenters by proxy, controlling what hundreds of

millions of Americans can say, see and hear every day.

We may be living in that world already.

II.

Under Skinner, state action must be found

here.

Should the Court choose to reach the state

action issue, coercion and joint activity need not be

the sole focus. The famous Section 230 of the

Communications Decency Act—immunizing social

media platforms against liability if they censor

“constitutionally protected” speech, 47 U.S.C. §

230(c)(2)(A)—should play a decisive role as well. In

fact, the closest and most important precedent for the

instant case is Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602 (1989), which turned not on

coercion but on a similar federal immunity provision.

In Skinner, the Court ruled on the

constitutionality of newly enacted federal regulations

concerning urine and breath testing of private

railway employees. See Skinner, 489 U.S. at 614–15.

One section of the regulations required certain tests,

9

and all parties agreed that the mandatory tests were

subject to constitutional scrutiny. See id. at 614. But

Subpart D of the regulations was permissive. See id.

Subpart D did not require the railway companies to

conduct the tests covered in that section of the

regulations; instead, it immunized railway companies

against liability if they performed those tests. See id.

The government argued in Skinner that the

Subpart D tests were not state action and hence not

subject to Fourth Amendment scrutiny because (1)

there was no coercion and (2) the ultimate decision

about whether to perform the tests was left to the

railway companies. See id. at 614–15. That is the very

same argument made by the Federal Government

here, with respect to social media companies’

censorship decisions. But the Skinner Court expressly

rejected this claim.

“The fact that the Government has not

compelled a private party to perform a search does

not, by itself, establish that the search is a private

one.” Id. at 615. “Here, specific features of the

regulations combine to convince us that the

Government did more than adopt a passive position

toward the underlying private conduct.” Id.

Specifically, the Federal Government had: (1)

“removed all legal barriers to the testing”—i.e., had

immunized the railways against liability if they

performed the tests; (2) “made plain … its strong

preference for [the] testing”; and (3) expressed its

“desire” to participate in the testing. Id. “These are

clear indices of the Government’s encouragement,

endorsement, and participation, and suffice to

implicate the Fourth Amendment.” Id. at 615–16.

10

The same three features are present here. The

Federal Government has: (1) through Section 230,

“removed all legal barriers” to social media censorship

of constitutionally protected speech, immunizing the

platforms against liability if they censor; (2)

repeatedly made plain its “strong preference” for such

censorship; and (3) endeavored to participate directly

and systematically (as established by the facts found

below) in deciding what specific speech and which

specific speakers the platforms should censor.

Indeed, on every front, the case for a state

action finding is stronger here than in Skinner. No

allegation was made in Skinner that the Government

had sought in any way to single out particular

employees for testing. Here, by contrast, the Federal

Government has repeatedly singled out particular

viewpoints, information, and speakers for censorship

through its systematic, persistent, and innumerable

communications with social media companies. This

presents a far stronger case of governmental

“encouragement, endorsement, and participation.”

Even more fundamentally, there was no

allegation in Skinner that the Federal Government

had pressured the railway companies in any way to

conduct the Subpart D testing. Here, by contrast,

there is copious evidence that the Government has

pressured social media companies to censor speech

the Administration disfavors.

When combined with the other Skinner factors,

governmental pressure makes a state action finding

imperative. See Jed Rubenfeld, Are Facebook and

Google State Actors?, LAWFARE, Nov. 4, 2019,

https://www.lawfaremedia.org/article/are-facebookand-google-state-actors

(“When

governmental

11

pressure is combined with a statutory provision like

Section 230, the result must be state action. Immunity

plus pressure has to trigger the Constitution’s

restraints.”) (original emphasis). Otherwise every

constitutional right would be in jeopardy.

Suppose the Federal Government: (1) passed a

statute guaranteeing legal immunity to private

companies if they hack into U.S. citizens’ emails or

texts and publish that material online; (2) made clear

to these companies the Government’s strong

preference that such hacking take place; (3)

communicated secretly with those companies to tell

them which people the government most wanted to

target; and finally (4) pressured these companies to

perform the hacks by suggesting adverse regulatory

consequences and intense White House disfavor if

they didn’t comply. Even if no coercion took place,

these facts must surely trigger a holding of state

action. If not, the Government could eviscerate the

Fourth Amendment (and every other constitutional

right) through the simple expedient of immunizing

private parties from liability and having those

parties perform the rights-violating conduct at the

Government’s behest.

III.

An Injunction Barring Federal Agents

from Privately Communicating with

Social Media Companies Encouraging

Censorship of Constitutionally Protected

Speech Would Be Narrowly Tailored and

Would Not Impinge on Petitioners’ Free

Speech Rights.

Petitioners object to the breadth of the

injunction issued by the Fifth Circuit and claim it will

12

interfere with Petitioners’ own speech. In the District

Court below, the Kennedy Plaintiffs sought a slightly

narrower preliminary injunction, barring Federal

agents from engaging, “pursuant to their official

duties, in private communications with any social

media company with the purpose of inducing,

encouraging, or promoting the censorship of

constitutionally protected speech.”4 Such an

injunction would not impinge on Petitioners’ free

speech rights and would be narrowly tailored to

redressing the constitutional violation at issue here.

“[W]hen public employees make statements

pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes.”

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Rather,

they are engaging in government speech, and it is well

established that “government speech itself is not

protected” by the First Amendment. NAACP v. Hunt,

891 F.2d 1555, 1565 (11th Cir. 1990) (“The First

Amendment protects citizens’ speech only from

government regulation; government speech itself is

not protected by the First Amendment.”). As this

Court has stated, there is a “crucial difference

between government speech” and the “private speech

[that] the Free Speech and Free Exercise Clauses

protect.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 302 (2000); see also, e.g., Pleasant Grove City,

Utah v. Summum, 555 U.S. 460, 467 (2009) (“[T]he

Free Speech Clause restricts government regulation

of private speech; it does not regulate government

speech.”); Columbia Broad. Sys., Inc. v. Democratic

E.g., ECF 20 at p. 9. The Kennedy Plaintiffs’ preliminary

injunction motion remains pending in the District Court,

undecided.

4

13

Nat’l Comm., 412 U.S. 94, 139 & n.7 (1973) (Stewart,

J., concurring) (“The First Amendment protects the

press from governmental interference; it confers no

analogous protection on the Government.”).

Accordingly, an injunction in this case limited

to private communications by government agents in

exercise of their official duties would not violate

Petitioners’ First Amendment rights. “[I]f we

conclude that the speech in this case is government

speech, the analysis ends because there has been no

First Amendment violation—in fact, the First

Amendment would not even apply.” Texas Div., Sons

of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d

388, 393 (5th Cir. 2014) (citation omitted), rev’d on

other grounds, 576 U.S. 200 (2015). See also, e.g.,

Vista-Graphics, Inc. v. Va. Dep’t of Transportation,

682 F. App’x 231, 237 (4th Cir. 2017) (“government

speech [is] not subject to protection under the Free

Speech Clause”).

Moreover, an injunction directed solely at

federal agents’ private communications with social

media companies undertaken with the purpose of

encouraging censorship of protected speech would be

narrowly tailored to redress the constitutional

violation at issue here and the means by which that

violation has been accomplished. See Missouri v.

Biden, 2023 U.S. Dist. LEXIS 114585, at *159 (“it was

not the public statements that were the problem….

Defendants … rather used meetings, emails, phone

calls, follow-up meetings, and the power of the

government to pressure social-media platforms to

change their policies and to suppress free speech”).

Such an injunction would leave Federal

officials and Members of Congress entirely free to

14

publicly state any pro-censorship opinions they

choose. If our elected representatives and our

administrative officers have lost faith in the First

Amendment, and believe that the American people

should not be permitted to express or see certain facts

or viewpoints, they would be free to publicly say so

any time they wished.

In addition, an injunction directed solely at

censorship of constitutionally protected speech would

defang any claim by Petitioners that Federal agents

have a right and duty to ask social media companies

to remove genuinely criminal or otherwise illegal

content. They would remain entirely free to do so.

CONCLUSION

Oliver Wendell Holmes once said that “general

principles do not decide concrete cases.” Lochner v.

New York, 198 U.S. 45, 76 (1905) (Holmes, J.,

dissenting). But this dictum is itself a “general

principle,” and like every other titan of American

jurisprudence, Holmes violated it and stood

unwaveringly on principle when it came to free

speech. See, e.g., Abrams v. United States, 250 U.S.

616, 630 (1919) (Holmes, J., dissenting) (“we should

be eternally vigilant against attempts to check the

expression of opinions that we loathe”).

Fundamental principles do decide this case.

The First Amendment “presupposes that right

conclusions are more likely to be gathered out of a

multitude of tongues, than through any kind of

authoritative selection. To many this is, and always

will be, folly; but we have staked upon it our all.”

Associated Press v. U.S., 326 U.S. 1, 28 (1945)

(Frankfurter, J., concurring) (quoting U.S. v.

15

Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)

(Hand, J.)).

For the foregoing reasons, the Kennedy

Plaintiffs respectfully ask the Court to affirm.

Dated: February 9, 2024

Respectfully Submitted,

________________________________

Mary Holland

Counsel of Record

Roger I. Teich

Children’s Health Defense

853 Franklin Ave, Suite 511

Franklin Lakes, NJ 07417

202-854-1310

mary.holland@childrenshealthdefense.org

Jed Rubenfeld

1031 Forest Rd.

New Haven CT 06515

16