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 Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICA CURIAE ANGELA READING

SUPPORTING RESPONDENTS

Thomas Brejcha

Counsel of Record

Christopher A. Ferrara

B. Tyler Brooks

Michael McHale

THOMAS MORE SOCIETY

309 W. Washington St.

Suite 1250

Chicago, Illinois 60606

Telephone: (312) 782-1680

Facsimile: (312) 782-1887

tbrejcha@thomasmoresociety.org

cferrara@thomasmoresociety.org

tbrooks@thomasmoresociety.org

mmchale@thomasmoresociety.org

Adam S. Hochschild

Hochschild Law Firm, LLC

THOMAS MORE SOCIETY

Special Counsel

P.O. Box 401

Plainfield, VT 05667

Telephone: (314) 503-0326

adam@hochschildlaw.com

Counsel for Amica Curiae Angela Reading

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

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

INTEREST OF AMICA CURIAE ............................... 1

SUMMARY OF ARGUMENT..................................... 3

ARGUMENT ............................................................... 6

I.

MRS. READING’S EXPERIENCE

SHOWS THE READINESS AND

ABILITY OF GOVERNMENT ACTORS

TO CENSOR AS WELL AS THE REAL

AND LASTING HARM THAT

RESULTS FROM GOVERNMENT

CENSORSHIP. ..................................................... 6

A. Federal and State Government Actors

Targeted Mrs. Reading’s Protected

Speech. ........................................................... 6

B. Government Officials Coerced a

Private Citizen to Remove Mrs.

Reading’s Facebook Post. .............................. 8

C. Mrs. Reading and Her Family Suffered

Due to Government Censorship and

Retaliation for Her Protected Speech. .......... 9

II. THE INJUNCTION PROPERLY

PROTECTS POLITICAL DISCOURSE. ........... 11

A. The Injunction Appropriately Protects

Free Speech. ................................................. 11

ii

B. Injunctive Relief is Needed Because

the Government Has Disregarded the

Most Basic Protections of the First

Amendment. ............................................... 14

C. Speech Deemed “Controversial” is

Entitled to the Same, if Not Greater,

Constitutional Protections as

Conventional Speech. .................................. 16

CONCLUSION .......................................................... 18

iii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

143 S. Ct. 2298, 216 L. Ed. 2d 1131 (2023) ....... 11

Abrams v. United States,

250 U.S. 616 (1919) ............................................ 15

Ariz. Free Enterprise Club’s Freedom Club PAC v.

Bennett,

564 U.S. 721 (2011) ............................................ 17

Ariz. v. Mayorkas,

143 S. Ct. 1312 (2023) .......................................... 4

Brandenburg v. Ohio,

395 U.S. 444 (1969) ............................................ 16

Buckley v. Valeo,

424 U.S. 1 (1976) ................................................ 18

Citizens United v. FEC,

558 U.S. 310 (2009) ...................................... 14, 17

Connick v. Myers,

461 U.S. 138 (1983) ............................................ 12

Cox v. Louisiana,

379 U.S. 536 (1965) ............................................ 15

Hill v. Colorado,

530 U.S. 703 (2000) ............................................ 12

Janus v. Am. Fed’n of State, Cnty. & Mun. Emps.,

Council 31,

138 S. Ct. 2448 (2018) ........................................ 14

iv

Lamont v. Postmaster General,

381 U.S. 301 (1965) ............................................ 13

Mahanoy Area School District v. B.L.,

141 S. Ct. 2038 (2021) ........................................ 15

Martin v. Struthers,

319 U.S. 141 (1943) ............................................ 13

Mills v. Alabama,

384 U.S. 214 (1966) ............................................ 12

Missouri v. Biden,

83 F.4th 350 (5th Cir. 2023) ..................... 2, 11, 13

Missouri v. Biden,

No. 3:22-CV-01213, 2023 WL 4335270

(W.D. La. July 4, 2023) ....................................... 11

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ...................................... 15, 17

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ......................................... 13

Red Lion Broadcasting Co. v. FCC,

395 U.S. 367, (1969) ........................................... 14

Schacht v. United States,

398 U.S. 58 (1970) .............................................. 17

Snyder v. Phelps,

562 U.S. 443 (2011) ............................................ 17

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................ 14

Stanley v. Georgia,

394 U.S. 557 (1969) ............................................ 13

v

Terminiello v. Chicago,

337 U.S. 1 (1949) ................................................ 17

Texas v. Johnson,

491 U.S. 397 (1989) ............................................ 17

Va. State Bd. of Pharm. v. Va. Citizens Consumer

Council,

425 U.S. 748 (1976) ............................................ 13

Watson v. Memphis,

373 U.S. 526 (1963) ............................................ 15

Whitney v. California,

274 U.S. 357 (1927) ............................................ 14

Constitution

U.S. Const. amend. I ............................................... 14

Other

John Milton, Paradise Lost, Book IV (1674) ..............5

William Pitt (the Younger), British House of

Commons, 18 Nov. 1783..............................................4

1

INTEREST OF AMICA CURIAE1

Amica Curiae Angela Reading, a mother and

former school board member, is the victim of

government censorship, like that at issue in the

present case. She is the plaintiff in a pending civil

rights case, Reading v. Duff et al., Case No. 1:23-cv01469-KWM-EAP (D.N.J.), and Case No. 23-3092 (3d

Cir.), that involves issues directly related to those

implicated here. Mrs. Reading has personally

experienced government censorship of her protected

speech on social media and faces the ongoing threat

of future censorship. She has an interest in ensuring

U.S. courts recognize and protect First Amendment

rights against the growing trend of infringement by

government actors who pressure social media

administrators to remove clearly protected speech

from the Internet because it departs from official

government narratives—in Mrs. Reading’s case the

official narrative that eminently questionable

“gender identity” propaganda is a fit subject for

elementary school students.

This case involves precisely the type of

censorship at issue in Reading: government

censorship on social media of speech certain

government officials characterize as dangerous

“misinformation” or “disinformation.” Government

censorship silences myriad speakers on social media,

such as Mrs. Reading, to whom others are entitled to

1 Amica 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 amica curiae

or her counsel contributed money intended to fund the

preparation or submission of this brief.

2

listen and respond. The primary speech at issue in

the present case relates to COVID-19 and elections,

while the speech at issue in Reading relates to

parental objections to gender ideology being taught

in public schools—all topics of significant and

important public debate. But the injunction in the

present case protects all “posted social-media

content containing protected free speech.” Missouri

v. Biden, 83 F.4th 350, 397 (5th Cir. 2023).

As briefly summarized below, and as detailed

at length in Reading v. Duff, military officials at a

local military base, incensed by Mrs. Reading’s

unquestionably First Amendment-protected views,

used a local police chief to obtain the removal of her

Facebook post on a matter of public concern in

violation of her free speech rights, causing ongoing

harm to her and her family. Like the government

officials in this case, the government officials in

Reading unapologetically defend their actions as

supposedly necessary for public “safety,” based on

the recently popularized theory, wholly contrary to

First Amendment law, that speech viewed as

disturbing by government officials could “inspire”

someone to commit violence and therefore must be

suppressed. Mrs. Reading submits this brief to relate

her experience as yet another victim of recent efforts

by government officials across the country to create,

extra-legally, a de facto new category of proscribable

speech: i.e., any speech the government deems

“dangerous” because of its potential to arouse

opposition, even vehement opposition, to government

policies and positions the government deems to be

unimpeachable official orthodoxy.

3

SUMMARY OF ARGUMENT

Amica Curiae Angela Reading submits this

brief in support of the injunction and the decision of

the Fifth Circuit.

Mrs. Reading became the target of

coordinated efforts by government officials, including

high ranking United States military officers and the

chief of her local police department, to silence her

speech. Why? Mrs. Reading and her children saw

posters in a public school affirming as morally

acceptable the terms “polysexual,” “genderfluid,”

“bi,”

“LGBT

Pride,”

“pansexual,”

and

“genderqueer”—posters

impressionable

school

children were induced to create, employing sexually

fraught terms of which they would have had no

knowledge without inculcation in “gender identity”

politics by teaching staff. Mrs. Reading reasonably,

in a non-threatening manner, expressed measured

“concern” about this on social media, in a single

Facebook post. The post “welcome[d] respectful

debate” and did not identify any student or staffer,

name the school, call for anyone to act, or violate

Facebook community standards.

Government officials mobilized to suppress

her post and the opinion she expressed in it. With no

basis in law or fact they claimed—and continue to

claim—that they needed to censor her post in the

interests of public “safety” because it could somehow

inspire third parties to commit acts of violence. They

coerced the Facebook group administrator (a private

citizen) to take down the post with the threat that

she would be liable for a school shooting if it

remained online and that, like Mrs. Reading, she

would come under investigation by Homeland

Security.

4

Through open-records requests, Mrs. Reading

obtained definitive proof of the coordinated, unlawful

efforts by government officials to censor her. She

then promptly filed her lawsuit against them in the

United States District Court for the District of New

Jersey. That lawsuit remains pending. In the

defendants’ filings, they do not deny the relevant

facts, offer no evidence that Mrs. Reading posed any

threat to anyone, and yet continue to defend their

conduct as supposedly “necessary” to protect the

“safety” of the community.

The defendants in

Reading v. Duff perfectly exemplify the rapidly

spreading practice of government officials at all

levels to cite “public safety” or “public health” as

grounds to coerce social media operators to censor

speech that departs from official government

narratives.

This alarming development is wholly

antithetical to the First Amendment and must be

decisively arrested and rejected by the courts. Our

founding generation knew well and, through our

Constitution, guarded against giving government

such sweeping powers. See, e.g., Ariz. v. Mayorkas,

143 S. Ct. 1312, 1316 (2023) (statement of Gorsuch,

J.) (“Decisions produced by those who indulge no

criticism are rarely as good as those produced after

robust and uncensored debate. Decisions announced

on the fly are rarely as wise as those that come after

careful deliberation. Decisions made by a few often

yield unintended consequences that may be avoided

when more are consulted. Autocracies have always

suffered these defects. Maybe, hopefully, we have

relearned these lessons too.”) (internal footnotes

omitted); cf. William Pitt (the Younger), British

House of Commons, 18 Nov. 1783 (“Necessity is the

5

plea for every infringement of human freedom: it is

the argument of tyrants; it is the creed of slaves.”),

available

at

https://www.oxfordreference.com/

display/10.1093/acref/9780191826719.001.0001/qoro-ed4-00008337 (last visited Feb. 8, 2024); John

Milton, Paradise Lost, Book IV, 393-94 (1674) (“So

spake the Fiend, and with necessity, / The tyrant’s

plea, excused his devilish deeds.”).

The record here demonstrates, as in Mrs.

Reading’s case, that the government has abandoned

its commitment to the most basic constitutional

protections for free speech. The injunction in the

present case was warranted to protect precisely that

speech the government doesn’t want the people to

hear because it questions the policies and views of

government officials who deem their positions “true”

and contrary views by citizens as proscribable

“disinformation.” Indeed, in Mrs. Reading’s case, the

police chief who acted as the agent for the military

officials demanding censorship of Mrs. Readings’

Facebook post on grounds of “public safety” defends

his actions as necessary to address her “moral-panic

driven diatribe, demonstrating significant ignorance

of gender identity issues.” In Mrs. Reading’s case, as

here, offenses against this kind of smug official

orthodoxy

become

grounds

for

government

censorship of clearly protected speech deemed

“dangerous.”

Our Constitution does not permit government

officials to operate in the shadows while shielded

from public scrutiny and criticism. Therefore, the

Fifth Circuit’s injunction was appropriate and

should not be vacated for the sake of our nation’s

perennial commitment to robust public debate

without government interference.

6

ARGUMENT

I.

MRS. READING’S EXPERIENCE SHOWS

THE READINESS AND ABILITY OF

GOVERNMENT ACTORS TO CENSOR AS

WELL AS THE REAL AND LASTING

HARM

THAT

RESULTS

FROM

GOVERNMENT CENSORSHIP.

The undisputed facts of Mrs. Reading’s case,

consistent with the facts in this case, emphasize the

need for urgent judicial action to stop the

government from violating the First Amendment

right to free speech.

A. Federal and State Government

Actors Targeted Mrs. Reading’s

Protected Speech.

After Mrs. Reading made her November 22

Facebook post, government officials launched a

coordinated attack on her protected speech. Army

Major Christopher Schilling worked with his fellow

military personnel at Joint Base McGuire-DixLakehurst (MDL).

For example, on November 29, 2022, Schilling

sent an official military email, including to local

school leadership, complaining about Mrs. Reading’s

speech as if it were unlawful incitement to violence:

“In the current political climate and recent hate

crimes across the country [sic] it goes without saying

that it takes only one person to be move [sic] to

violent action by her post.” Schilling demanded

“action each of you can take to insure [sic] the

7

continued safety of students until someone can put a

stop to her actions.”

On the same date, Major Nathaniel Lesher,

head of the Joint Base’s Security Forces, working

with Schilling, “pushed” the idea of censoring Mrs.

Reading’s post to the local North Hanover Township

Police Chief, Robert Duff. Schilling informed a group

of parents and school staffers that he was “actively

working with the base leadership . . . and they are

working to support us in our efforts”—meaning the

official censorship of Mrs. Reading’s First

Amendment-protected views.

The Joint Base Installation Antiterrorism

Program Manager, Joseph Vazquez, referred Mrs.

Reading to the New Jersey Office of Homeland

Security and Preparedness as well as to the New

Jersey State Police Regional Operations Intelligence

Center because “[b]oth agencies[’] analysts keep an

eye on far right/hate groups.”

Meanwhile, another Joint Base leader, Lt.

Col. Megan Hall, Deputy Commander of the 87th

Mission Support Group’s Security Squadron, joined

in the growing conspiracy to censor Mrs. Reading.

Following a phone call with the Superintendent of

the school district, Hall emailed local school leaders

to condemn Mrs. Reading’s protected speech at

length, copying other military personnel.

She

presented the Superintendent with several posts

supporting Mrs. Reading and fretted that “Ms.

Angela Reading encouraged people of like

mindedness to attend the monthly BOE [Board of

Education] meetings and express the same view

point [sic]”—as if encouraging people to attend a

board meeting (which in fact Mrs. Reading had not

done) were actionable wrongdoing warranting

8

intervention by public officials. The school

superintendent forwarded Hall’s implicit request for

censorship of Mrs. Reading to the local police chief.

B. Government Officials Coerced a

Private Citizen to Remove Mrs.

Reading’s Facebook Post.

On November 30, 2022, Police Chief Robert

Duff, at the behest of the aforesaid federal military

officials, coerced the removal of Mrs. Reading’s

Facebook post. Identifying himself as the township’s

Chief of Police, Duff told the Facebook group

administrator (a private citizen) that local police

were working in cooperation with Homeland

Security, which was already investigating Mrs.

Reading, and Joint Base officials concerning the

baseless claim that her post could provoke a school

shooting, so that the administrator should take it

down. The administrator was so intimidated by Duff

that she removed Mrs. Reading’s post while still on

the phone with him.

After Chief Duff thus coerced the group

administrator to remove the post, he reported on his

success by email to the Joint Base officials via their

military email accounts, stating “the North Hanover

Township Police takes this issue very seriously” and

“I will continue to see if I can get additional posts

removed from other social media posts. I will keep

you advised.”

Once she learned of Chief Duff’s actions from

the Facebook group administrator, Mrs. Reading

sent him an email protesting his censorship of her

speech. On December 1, 2022, he telephoned Mrs.

Reading to admit that he did have the Facebook post

9

taken down and further revealed he was working

with the Joint Base officials who had identified her

as an “extremist.”

In a social media post, Schilling falsely

depicted Mrs. Reading as a security threat to “many

families” which the Joint Base leadership was taking

“very seriously.” The Joint Base officials continued

an unmerited frenzy of communications with

numerous law enforcement agencies so as to “threattag” Mrs. Reading’s speech. On December 5, the

New Jersey Office of Homeland Security and

Preparedness, in response to the Joint Base’s

“Installation Threat Working Group” activity

concerning Mrs. Reading’s already-censored speech,

advised that it would “loop in the Burlington County

Prosecutor’s Office Counter-Terrorism Coordinator

for situational awareness.” Joint Base leadership

continued to trigger widespread law enforcement

investigation and a state of alarm, including an

attempt to launch a statewide Incident Detection

Response (IDR) “threat-tagging” Mrs. Reading

expressions of parental concern as an “incident” of

potential (or even actual) criminality.

C. Mrs. Reading and Her Family

Suffered

Due

to

Government

Censorship and Retaliation for Her

Protected Speech.

The public furor against Mrs. Reading

orchestrated by federal and state officials made

untenable her elected position as Vice President of

the Northern Burlington County Regional School

Board. On December 7, 2022, she resigned that

position. Placed in the same position as his wife by

10

the government’s actions, Mrs. Reading’s husband

resigned as President of North Hanover Township’s

school board. On December 8, 2022, upon hearing

this news, Lt. Col. Hall sent an email to the Joint

Base officials, stating: “Team, Thank you. Please

note we appreciate everything you do for you [sic]

kids and families here at JB MDL.” The retaliation

against Mrs. Reading and her family continued, as

detailed at length in her lawsuit.

The government’s actions have rendered Mrs.

Reading, the mother of two children, a pariah in her

own community. In March 2023, she lost a job offer

to work as an associate practicing education law at a

respected local firm and is now virtually

unemployable in her field of study.2 She and her

husband have had to withdraw their children from

the public school system and enroll them in private

school at great expense.

All of this harm befell Mrs. Reading because

of the government’s unlawful and unbridled

response to a single social media post, no part of

which was threatening violence to anyone and which

contained speech fully protected by the First

Amendment. It was thus not Mrs. Reading, but the

government actors in question, who exhibited “moral

panic” over a view running counter to their own and

successfully contrived to drive its expression from

the digital public square.

The

protections

of

the

Constitution

notwithstanding, agents of the federal, state, and

local government censored Mrs. Reading and

2 At the time of her Facebook post, Mrs. Reading was in her

third year of study at Villanova University Law School and

preparing to work in education law, as she has previously spent

many years as an educator.

11

radically altered her life forever. Her case, like this

one, demonstrates that government—especially, the

federal government—needs to be emphatically

reacquainted with the safeguards for free speech

enshrined in our law. Only the federal judiciary is

capable of providing that lesson. The Fifth Circuit’s

injunction is an urgently needed first step in rolling

back government’s alarming encroachments on First

Amendment liberty over the past few years.

II.

THE

INJUNCTION

PROPERLY

PROTECTS POLITICAL DISCOURSE.

A. The

Injunction

Appropriately

Protects Free Speech.

The protection of public discourse on

important social and political issues is at the core of

the First Amendment. 303 Creative LLC v. Elenis,

143 S. Ct. 2298, 2318, 216 L. Ed. 2d 1131 (2023).

Mrs. Reading, along with Respondents here and

many others, is in the crosshairs of the government’s

ongoing efforts to suppress officially disfavored

public discourse on important issues of community

interest. “[M]illions of protected free speech postings

have been suppressed by the government.” Missouri

v. Biden, 83 F.4th at 392 (quoting the District

Court’s order, Missouri v. Biden, No. 3:22-CV-01213,

2023 WL 4335270, at *44 (W.D. La. July 4, 2023)).

“[H]undreds of thousands or millions of citizens who

are potential audience members [were] affected by

federal social-media speech suppression.” Missouri v.

Biden, 2023 WL 4335270, at *65.

Mrs. Reading’s Facebook post is but one

notable example of the millions of protected speech

12

postings federal actors have recently suppressed

with their increasingly cavalier approach to free

speech. The government’s censorship of Mrs.

Reading affected an untold number of potential

audience members who were denied the ability to see

and consider her point of view. Mrs. Reading herself

is a potential audience member affected by

suppression of others’ social media posts, including

those at issue here. The government suppressed her

right to voice her opinion, suppressed the rights of

others to hear that opinion, and suppressed her right

to hear the opinions of others. See, e.g., Hill v.

Colorado, 530 U.S. 703, 728 (2000) (“[T]he First

Amendment protects the right of every citizen to

reach the minds of willing listeners and to do so

there must be opportunity to win their attention.”)

(cleaned up). As in this case, the government officials

in Reading v. Duff continue to defend their unlawful

censorship, insist that it was necessary and

appropriate in the interests of safety, and have given

no indication they intend to cease it.

Receiving

information

about

one’s

government,

especially

criticism

of

official

government narratives, is what distinguishes a

healthy civic society from a police state. See, e.g.,

Connick v. Myers, 461 U.S. 138, 156 (1983)

(Brennan, J., dissenting) (“It is hornbook law . . .

that speech about ‘the manner in which government

is operated or should be operated’ is an essential

part of the communications necessary for selfgovernance the protection of which was a central

purpose of the First Amendment.”) (quoting Mills v.

Alabama, 384 U.S. 214, 218 (1966)).

The

Constitution therefore prevents the government

from interfering with “the right to receive

13

information and ideas.” Stanley v. Georgia, 394 U.S.

557, 564 (1969); see, e.g., Martin v. Struthers, 319

U.S. 141, 143 (1943).

“The dissemination of ideas can accomplish

nothing if otherwise willing addressees are not free

to receive and consider them. It would be a barren

marketplace of ideas that had only sellers and no

buyer.” Lamont v. Postmaster General, 381 U.S. 301,

308 (1965) (Brennan, J., concurring) (citations

omitted). And, “[a] fundamental principle of the

First Amendment is that all persons have access to

places where they can speak and listen, and then,

after reflection, speak and listen once more.”

Packingham v. North Carolina, 137 S. Ct. 1730, 1735

(2017). “[W]here a speaker exists . . . the protection

afforded is to the communication, to its source and to

its recipients both.” Va. State Bd. of Pharm. v. Va.

Citizens Consumer Council, 425 U.S. 748, 756 (1976).

“This right to listen is ‘reciprocal’ to the State

Plaintiffs’ right to speak and constitutes an

independent basis for the State Plaintiffs’ standing

here.” Missouri, 83 F.4th at 372 (quoting Va. State

Bd. of Pharm., 425 U.S. at 757).

The injunction in this case appropriately

protects the right to engage in free public discourse

against what had become an out-of-control

government censorship complex—the same sort of

complex, on a smaller scale, to which Mrs. Reading

was subjected.

The decision by this Court should restore the

proper operation of the marketplace of ideas at all

levels of government.

14

B. Injunctive

Relief

is

Needed

Because the Government Has

Disregarded

the

Most

Basic

Protections

of

the

First

Amendment.

Despite the manner in which the government

has treated the Respondents and Mrs. Reading, “it is

our law and our tradition that more speech, not less,

is the governing rule.” Citizens United v. FEC, 558

U.S. 310, 361 (2009); see U.S. Const. amend. I

(prohibiting the government from making laws

“abridging the freedom of speech”).

The

constitutional protection of free speech is not merely

intended to encourage self-expression. “Free

speech… is essential to our democratic form of

government... and it furthers the search for truth.”

Janus v. Am. Fed’n of State, Cnty. & Mun. Emps.,

Council 31, 138 S. Ct. 2448, 2464 (2018). “Whenever

the Federal Government or a State prevents

individuals from saying what they think on

important matters or compels them to voice ideas

with which they disagree, it undermines these ends.”

Id.

Our Founders were confident in their belief

“that freedom to think as you will and to speak as

you think are means indispensable to the discovery

and spread of political truth[.]”

Whitney v.

California, 274 U.S. 357, 375 (1927) (Brandeis, J.,

concurring). The Constitution accordingly seeks to

“maintain a free marketplace of ideas, a marketplace

that provides access to ‘social, political, esthetic,

moral, and other ideas and experiences.’” Sorrell v.

IMS Health Inc., 564 U.S. 552, 583 (2011) (quoting

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,

15

390, (1969) and citing Abrams v. United States, 250

U.S. 616, 630 (1919) (Holmes, J., dissenting)).

A crucial corollary to the constitutionallymandated open marketplace of ideas is that even

allegedly false political statements—so-called

“misinformation” or “disinformation” in modern

parlance—are protected. See New York Times Co. v.

Sullivan, 376 U.S. 254, 279 n.19 (1964) (“Even a

false statement may be deemed to make a valuable

contribution to public debate, since it brings about

the clearer perception and livelier impression of

truth, produced by its collision with error.”) (cleaned

up). And as to falsity, government is not the arbiter

of truth empowered to suppress whatever speech it

deems false. Id. at 271.

Yet another crucial corollary to the rule of law

mandating the marketplace of ideas is that it is

precisely speech labelled “offensive,” “inflammatory,”

or some other legally inconsequential pejorative that

deserves First Amendment protection. Justice Alito

recently explained in his concurring opinion in

Mahanoy Area School District v. B.L., “[I]t is a

‘bedrock principle’ that speech may not be

suppressed simply because it expresses ideas that

are ‘offensive or disagreeable.’” 141 S. Ct. 2038, 2055

(2021) (Alito, J., concurring) (citations omitted).

“[C]onstitutional rights may not be denied simply

because of hostility to their assertion or exercise.”

Watson v. Memphis, 373 U.S. 526, 535 (1963); Cox v.

Louisiana, 379 U.S. 536, 551 (1965).

In sum, the Constitution forbids government

from treating politically engaged citizens like

domestic enemies. While speech that is directed to

inciting imminent lawless action and is likely to

16

produce it enjoys no First Amendment protection,3

the rule of law is violated by government censorship

of speech that is constitutionally protected, however

disfavored it may be in the minds of government

officials who appoint themselves judges of

“misinformation” and “disinformation.”

Tellingly, the government here conflates

constitutionally unprotected, unlawful activity like

recruiting terrorists or harming children with

protected speech it characterizes as “spread[ing]

misinformation and disinformation.” See Gov’t

Applic. at 6 (social media “carries significant

hazards, including the use of social media platforms

to recruit terrorists, harm children, and spread

misinformation and disinformation.”).

The

government thus defends as righteous precisely the

growing regime of impermissible official censorship

of protected speech the government decides people

must not publish or read. That regime has been

dealt an important blow in this case—and it was

long overdue.

C. Speech Deemed “Controversial” is

Entitled to the Same, if Not

Greater, Constitutional Protections

as Conventional Speech.

Anodyne speech does not need the

Constitution to protect it.

It is precisely

controversial speech that must be shielded from

government by the impenetrable armor of First

Amendment protection. “The right to speak freely

and to promote diversity of ideas and programs . . .

3 See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

17

may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction

with conditions as they are, or even stirs people to

anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949);

see also Snyder v. Phelps, 562 U.S. 443, 460-61

(2011) (“As a Nation we have chosen . . . to protect

even hurtful speech on public issues to ensure that

we do not stifle public debate.”); Texas v. Johnson,

491 U.S. 397, 408-09 (1989) (“[A] principal function

of free speech under our system of government is to

invite dispute.”) (internal quotation marks and

citations omitted).

Speaking on matters of public concern, as

Mrs. Reading and the millions of individuals whose

speech is at issue here have done, can never be

treated as a threat to “public safety.” It is, rather,

the first line of defense against tyranny, as our

nation’s history demonstrates. See, e.g., Citizens

United, 558 U.S. at 339 (“The right of citizens to

inquire, to hear, to speak, and to use information to

reach consensus is a precondition to enlightened selfgovernment and a necessary means to protect it.”).

Undoubtedly, the public has an interest in knowing

how its officials are discharging their duties. “The

right of free public discussion of the stewardship of

public officials . . . [is] a fundamental principle of the

American form of government.” New York Times,

376 U.S. at 275; see Schacht v. United States, 398

U.S. 58, 63 (1970) (commenting that all persons “in

our country, enjoy . . . a constitutional right to

freedom of speech, including the right openly to

criticize the Government”); see also Ariz. Free

Enterprise Club’s Freedom Club PAC v. Bennett, 564

U.S. 721, 754 (2011) (“‘[T]here is practically

universal agreement that a major purpose of the

18

First Amendment ‘was to protect the free discussion

of governmental affairs[.]’”) (quoting Buckley v.

Valeo, 424 U.S. 1, 14 (1976)).

In recent years government officials have been

abusing their authority on a scale never before seen,

undermining our nation’s bedrock commitment to

freedom of speech. For too long they have been able

to hide from the light of public scrutiny demanded by

the First Amendment as they silence critics of their

policies and actions. Government officials may desire

freedom from all criticism, but the First Amendment

does not permit them to seek that illicit luxury. The

injunction restores the protection of the First

Amendment to its rightful place in American life.

For the sake of our hard-won heritage of freedom, it

must be affirmed.

CONCLUSION

The suppression of amica Angela Reading’s

speech parallels the suppression of speech engaged

in by Petitioners here. Reversing the injunction

would give the green light to governments that they

may coerce, intimidate, and ultimately silence

speech they dislike, the First Amendment

notwithstanding.

Instead, this Court should affirm the decision

of the Fifth Circuit to issue a preliminary injunction.

19

Respectfully

February, 2024.

submitted,

this

9th

day

Thomas Brejcha

Counsel of Record

Christopher A. Ferrara

B. Tyler Brooks

Michael McHale

THOMAS MORE SOCIETY

309 W. Washington St., Suite 1250

Chicago, Illinois 60606

Telephone: (312) 782-1680

Facsimile: (312) 782-1887

tbrejcha@thomasmoresociety.org

cferrara@thomasmoresociety.org

tbrooks@thomasmoresociety.org

mmchale@thomasmoresociety.org

Adam S. Hochschild

Hochschild Law Firm, LLC

THOMAS MORE SOCIETY – Special Counsel

P.O. Box 401

Plainfield, VT 05667

Telephone: (314) 503-0326

adam@hochschildlaw.com

Counsel for Amica Curiae

Angela Reading

of