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

No. 23A243

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In the

Supreme Court of the United States

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

Applicants,

v.

MISSOURI, ET AL.

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ON EMERGENCY APPLICATION FOR A STAY

OF PRELIMINARY INJUNCTION ISSUED ON JULY 4, 2023

BY THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA, CASE NO. 3:22-CV-01213

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KENNEDY PLAINTIFFS’ AMICUS

BRIEF IN OPPOSITION TO STAY

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Mary Holland

Counsel of Record

Jed Rubenfeld

Children’s Health Defense

853 Franklin Ave, Suite 511

Franklin Lakes, NJ 07417

202-854-1310

mary.holland@childrenshealthdefense.org

TABLE OF CONTENTS

Introduction……………………………………………………………

1

Interests of Amici…………………………………………………......

4

Summary of Argument……………………………………………….

5

Argument……………………………………………………….……. …

6

I.

Under Skinner, the government’s censorship

campaign turns social media censorship into state action..

6

II. Skinner also supports the conclusion that even

to the extent the Government’s censorship campaign

does not satisfy one or more of the familiar state action

tests, it is still unconstitutional………………………………..

9

Conclusion………………………………………………………………..

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TABLE OF AUTHORITIES

Cases

Biden v. Knight First Amendment Institute at Columbia Univ., 141 S. Ct. 1220

(2021) .......................................................................................................................... 1

Maryland v. King, 567 U.S. 1301 (2012) ....................................................................... 6

Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S. Dist. LEXIS 114585 (W.D. La. July

4, 2023) ....................................................................................................................... 6

Norwood v. Harrison, 413 U.S. 455 (1973) ................................................................... 4

O’Handley v. Weber, 62 F.4th 1145 (9th. Cir. 2023) ................................................... 11

Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ............................................... 1

Rendell-Baker v. Kohn, 457 U.S. 830 (1982)............................................................... 10

Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) .............................................. 1

Skinner v. Ry. Lab. Executives’ Ass’n,

489 U.S. 602 (1989) .................................................................................................... 2

United States v. Davis, 482 F.2d 893 (9th Cir. 1973) ................................................. 12

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748 (1976) ........................................................................................................... 5

Watts v. Northside Indep. Sch. Dist., 37 F.4th 1094 (5th Cir. 2022) ........................... 4

Statutes

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

Other Authorities

UNITED STATES HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ANTITRUST,

INVESTIGATION OF COMPETITION IN DIGITAL MARKETS (2020) ................................... 1

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INTRODUCTION1

Litigants exaggerate. Nonetheless, it may actually be true that the fate of the

freedom of speech in America depends on what the Court does with this case.

Social media is “the modern public square.”2 But today’s public square has

gatekeepers—“platform gatekeepers”3—a handful of behemoth private companies

with unprecedented control over the content of public discourse.4 Companies like

Facebook and Google decide every day for hundreds of millions of Americans what

they are allowed to say, see, and hear. Because these are private companies, the

Constitution ordinarily would not apply to their “content moderation” decisions. But

as we now know, and as the documentary record in this case demonstrates, the

Federal Government has for several years been waging a systematic, clandestine, and

No counsel for any party authored this brief in whole or in part. No counsel for

any party, nor any party, made any monetary contribution intended to fund the

preparation or submission of this brief. Nor were any such contributions made by

any person other than amici or their counsel.

2 Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (referring to “[s]ocial

media” as the “modern public square”). “These websites can provide perhaps the most

powerful mechanisms available to a private citizen to make his or her voice heard.

They allow a person with an Internet connection to ‘become a town crier with a voice

that resonates farther than it could from any soapbox.’” Id. (quoting Reno v. Am. Civil

Liberties Union, 521 U.S. 844, 870 (1997)).

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UNITED STATES HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ANTITRUST,

INVESTIGATION OF COMPETITION IN DIGITAL MARKETS 57 (2020).

4 See Biden v. Knight First Amendment Institute at Columbia Univ., 141 S. Ct. 1220,

1221 (2021) (Thomas, J., concurring) (“Today’s digital platforms provide avenues for

historically unprecedented amounts of speech. . . Also unprecedented, however, is the

concentrated control of so much speech in the hands of a few private parties.”). The

Internet’s “platform gatekeepers” exercise control over speech content both directly

and indirectly. They do so directly though content-based blocking of posts and videos

on their social media platforms and by de-platforming (terminating the accounts of)

individuals who are said to violate their terms of service. They do so indirectly

through content-based “shadow-banning,” “de-boosting,” “demoting” or otherwise

restricting (often without notifying the speaker) the reach of disfavored speech.

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highly effective campaign to get these companies to do what the government itself

cannot: censor protected speech on the basis of its content and viewpoint.

Thus has arisen an uncharted First Amendment constellation: on the one

hand, the “vast democratic forums of the Internet,”5 the likes of which America has

never seen; on the other, a concerted governmental campaign to induce censorship in

those forums, threatening to turn them into “the most massive system of censorship

in the nation’s history.”6 The burden of deciding what to do with this new First

Amendment constellation rests on the shoulders of this Court.

This amicus brief is respectfully submitted by the Plaintiffs in Kennedy v.

Biden, a case consolidated in the district court below with the instant case. 7 This

brief is submitted with the hope of assisting the Court by foregrounding a single point

that may otherwise be overlooked: the critical importance to this case of Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), and, under Skinner, of the

famous Section 230 of the Communications Decency Act of 1996.

In Skinner, as explained more fully below, the Court ruled that certain breath

and urine tests conducted by private railways on their own employees constituted

5 Packingham v. North Carolina, 137 S. Ct. at 1735 (quoting Reno, 521 U.S. at 868).

6 Philip Hamburger, Is Social-Media Censorship a Crime?, WALL ST. J., Dec. 13,

2022, https://www.wsj.com/articles/is-social-media-censorship-a-crime-section-241us-code-government-private-conspiracy-civil-rights-speech-11670934266. Mr.

Hamburger is the Maurice & Hilda Friedman Professor of Law at Columbia Law

School.

7 See Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S. Dist. LEXIS 127620 (W.D.

La. July 24, 2023) (ordering consolidation of Missouri v. Biden with Kennedy v.

Biden). The Kennedy Plaintiffs reserve the right to move to intervene in these

proceedings should the Court grant certiorari.

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state action. Skinner, 489 U.S. at 615. The reason was twofold. Newly enacted federal

regulations, which did not require those tests, immunized the railway companies

from state law liability if they conducted them. Id. At the same time, the government

had “made plain” its “strong preference” that the tests be conducted. Id. (emphasis

added). The government could not, held the Skinner Court, evade constitutional

scrutiny by inducing private companies, through a combination of immunity plus

“encouragement,” to conduct searches the government could not. Id. at 615–16.

The very same one-two punch exists here. First, Section 230 expressly

immunizes social media companies from state law liability if they censor

“constitutionally protected” speech the companies deem “objectionable.” 47 U.S.C. §

230(c)(2)(A). Second, the Federal Government is making plain to social media

companies its very strong preference that certain government-identified speech and

speakers be suppressed.

But this case includes yet a third element that makes a finding of state action

even more imperative. Here, as the district court found, as the Fifth Circuit affirmed,

and as the documentary record establishes, the Federal Government has applied

powerful, relentless pressure on social media companies to censor governmentdisfavored speech. Pages and pages of briefing in this case will argue about whether

this pressure amounted to “coercion,” and surely much of it did. But regardless, under

Skinner, the combination of immunity, strong preference, and pressure must

dictate a finding of state action—or else every right in the Bill of Rights is in danger.

See Jed Rubenfeld, Are Facebook and Google State Actors?, LAWFARE, Nov. 4. 2019,

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

(“When

governmental 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).

And Skinner in turn rests on a more fundamental constitutional principle, also

directly applicable to this case. As this Court held in Norwood v. Harrison, 413 U.S.

455 (1973), it is “axiomatic that [the] state may not induce, encourage or promote

private persons to accomplish what it is constitutionally forbidden to accomplish.” Id.

at 465. For several years now, the federal government’s social media censorship

campaign has been violating this principle with abandon.

INTERESTS OF AMICI

This amicus brief is respectfully submitted by the named Plaintiffs in Kennedy

et al. v. Biden et al., No. 3:23-cv-00381 (W.D. La.), a related case pending in the court

below, which has been consolidated for all purposes with the instant case. (ECF No.

316; Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S. Dist. LEXIS 127620 (W.D. La.

July 24, 2023) (ordering consolidation of Missouri v. Biden with Kennedy v. Biden).

The Plaintiffs in Kennedy v. Biden (the “Kennedy Plaintiffs”) have sued the same

Defendants as in Missouri v. Biden on the basis of substantially identical facts. The

difference is that plaintiffs in Kennedy do not sue as speakers alleging that their

speech has been censored online (although in fact it has); they sue as and on behalf

of social media users (viewers and listeners) nationwide, whose right to receive

information and ideas is being violated by the government’s social media censorship

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campaign. Because (as consolidated parties below) the Kennedy Plaintiffs’ legal

rights—and those of the social media users they represent—may well in effect be

adjudicated in this case, they have a direct interest in the outcome of this application

for a stay.

Moreover, one of the Kennedy Plaintiffs is Mr. Robert F. Kennedy, Jr., who as

much as anyone in the country has been singled out and targeted by the government’s

censorship campaign. Mr. Kennedy is also a candidate for United States President,

and his public speeches are even now being censored by the same social media giants

that the Federal Government has been working with, and pressuring, to bring about

such censorship. He therefore has a profound, personal interest in halting the

government’s censorship-by-proxy efforts. Another of the Kennedy Plaintiffs is

Children’s Health Defense (CHD), a nonprofit organization with over 70,000

members across the country; CHD’s members are avid consumers of online health

news—particularly COVID-related news, which the Government has repeatedly

targeted—both to make their own personal health decisions and to inform their

political activity. Under Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 757 (1976), CHD, a nationwide organization,

has the strongest possible interest in, and standing to seek, a nationwide injunction

of the Federal Government’s censorship campaign.

SUMMARY OF ARGUMENT

Before the Court is an application to stay a preliminary injunction issued by

the United States District Court for the Western District of Louisiana, as modified by

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the United States Court of Appeals for the Fifth Circuit. See Missouri v. Biden, No.

3:22-CV-01213, 2023 U.S. Dist. LEXIS 114585 (W.D. La. July 4, 2023), modified, No.

23-30445, __ 4th __, 2023 U.S. App. LEXIS 23965 (5th Cir. Sept. 8, 2023). Because

the test for granting such a stay includes a determination of whether “a fair prospect”

exists that the Court will reverse the decision below, Maryland v. King, 567 U.S.

1301, 1302 (2012) (Roberts, C.J., in chambers) (citation omitted), the Court will

necessarily consider the merits.

Skinner dictates denial of a stay for two distinct reasons. First, under Skinner,

the government’s social media censorship campaign crosses the state action

threshold—i.e., it turns social media censorship into state action, and as such into a

violation of the First Amendment. Second, Skinner also supports the conclusion that

even if—or to the extent that—the government’s social media censorship efforts do

not cross the state action line, they are still unconstitutional.

ARGUMENT

I.

Under Skinner, the government’s censorship campaign turns social

media censorship into state action.

In Skinner, the Court ruled on the constitutionality under the Fourth

Amendment of newly enacted regulations dealing with urine and breath testing of

railway employees. See Skinner, 489 U.S. at 614–15. One section of the regulations

mandated certain tests, 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. Id. Subpart D did not require the railway companies to conduct the tests

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laid out in that section of the regulations; however, it immunized from state law

liability any railway companies that did perform those tests. Id.

The government argued in Skinner that the Subpart D tests were not subject

to Fourth Amendment scrutiny because there was no coercion, with the ultimate

decision about whether to perform the tests left to the railway companies, making the

tests private action, not state action (see id. at 614–15)—essentially the same

argument made by the government here, about social media companies’ censorship

decisions. This Court rejected that argument.

“The fact that the Government has not compelled a private party to perform a

search,” the Court stated, “does not, by itself, establish that the search is a private

one. 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. at 615. Specifically, the government: (1) had “removed all legal barriers

to the testing;” and (2) had “made plain … its strong preference for [the] testing.” Id.

In addition, there were elements of government “participation” as well, including the

fact that the government had laid out the regulations it wanted to see performed and

had also expressed a “desire” “to share in the fruits” of such 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.

All three features are equally present in the instant case. First, Section 230(c)

of the Communications Decency Act “remove[s] all legal barriers” in exactly the same

way the regulations in Skinner did. Subpart D of the Skinner regulations immunized

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railroads from state law liability if they conducted the designated tests. See Skinner,

489 U.S. at 615. Section 230(c) immunizes social media companies from state law

liability if they censor “constitutionally protected” speech they deem objectionable. 47

U.S.C. § 230(c)(2)(A).

Second, the Federal Government has repeatedly “made plain . . . its strong

preference” for the censorship it seeks. This Skinner factor is not open to serious

dispute given the torrent of censorship demands and requests documented below.

Finally, the governmental “participation” here exceeds that in Skinner. As

detailed comprehensively by the district court, the Government has worked in close

and secret coordination with all the major social media companies, communicating

frequently, meeting regularly, identifying particular speakers and viewpoints it

wanted suppressed. At the same time, the Government made clear its “desire” to use

social media censorship to serve its own ends, thus “sharing in the fruits.” For

example, governmental agents have sought to induce online censorship of

constitutionally protected speech: to insulate Administration policies from criticism

(for example, by suppressing accurate and legitimate speech questioning the COVID

vaccines’ safety); to suppress accurate information that could lead to governmentallydisfavored attitudes (such as “vaccine hesitancy”); and apparently to bury potentially

damaging information about the President’s son. Thus the governmental

“participation” here, as well as its expression of “strong preference,” is far greater,

more direct, and more systematic than anything presented in Skinner.

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Moreover, as stated above, an additional element present here—governmental

pressure—makes the case for finding of state action under Skinner even more

powerful. The combination of statutory immunity, encouragement, participation, and

pressure must dictate a finding of state action, for otherwise the government could

violate constitutional rights with impunity. Suppose the Federal Government: (1)

passed a statute guaranteeing legal immunity to private companies that hack into

U.S. citizens’ email accounts (without probable cause or a warrant); (2) made clear its

strong preference that such hacking take place; (3) then communicated closely and

secretly with those companies, providing them with information about which people

the government believed to be most dangerous, whose email the Administration most

wanted to intercept; and finally (4) pressured these companies to perform the email

seizures in question, hauling their CEOs before congressional committees,

threatening adverse regulatory consequences, and suggesting intense White House

disfavor if they didn’t do more. Surely this combination of facts would trigger a finding

of state action and a violation of the Fourth Amendment. The same result should

obtain here.

II.

Skinner also supports the conclusion that even to the extent the

Government’s censorship campaign does not satisfy one or more of the

familiar state action tests, it is still unconstitutional.

Much of the argumentation presented to this Court will focus on whether the

innumerable communications (detailed by the court below) between federal actors

and social media companies satisfy one or more of the familiar state action tests—

coercion, joint action, entwinement, nexus, and so on. While many of those

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communications undoubtedly satisfy one or more of those tests (and this Court can

uphold the injunction on that ground alone), Skinner also supports the conclusion

that even if—or to the extent that—those communications do not satisfy any of the

familiar state action tests, they are still unconstitutional.

The reason is that Skinner rests on and exemplifies the “axiomatic” principle

set forth in Norwood—that government “may not induce, encourage or promote

private persons to accomplish what it is constitutionally forbidden to accomplish,”

413 U.S. at 465—and Norwood was not a state action case.

In Norwood, the Court enjoined Mississippi’s policy of providing free textbooks

to whites-only private schools. See Norwood, 413 U.S. at 466. The phrase “state

action” does not appear in the case. No claim was made (or could have been made),

for example, that Mississippi was coercing private schools to discriminate; there was

no requirement that any school discriminate. Similarly, no claim was or could have

been made that the textbook-provision program turned the private schools into “joint

actors” with the government. Providing textbooks to a school is not nearly enough

entwinement to meet that test. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830 (1982)

(holding that a private school’s receipt of over 90% of its funding from government

did not make private school a state actor).

Thus Norwood was not tethered to a state action finding. Its axiomatic

principle uses language markedly different from the language of state action doctrine

(“induce, encourage, or promote” as opposed to “coerce,” “conspire,” “nexus,”

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“entwinement,” “public function,” and so on), because Norwood is addressed to

different circumstances and to a different category of cases.

Where plaintiffs sue a private party and allege that its conduct violated the

Constitution, a court must decide if it is dealing with “one of the exceptional cases” in

which the state action doctrine is satisfied. See, e.g., O’Handley v. Weber, 62 F.4th

1145, 1156 (9th. Cir. 2023) (“Determining whether this is one of the exceptional cases

in which a private entity will be treated as a state actor for constitutional purposes

requires us to grapple with the state action doctrine.”). Such a determination typically

turns on satisfaction of one or more of the familiar state action tests, such as coercion,

joint action, nexus, or public function. See id. at 1157-58.

By contrast, Norwood’s axiomatic principle applies to cases where, as here (and

as in Skinner), suit is brought against governmental defendants, especially where

government agents are deliberately evading constitutional rights by asking private

parties to do a job that the Constitution prohibits the government from doing directly.

In such cases, familiar state action tests like coercion and conspiracy do not set the

limits of what the government is barred from doing. Rather, under the express

language of Norwood, plaintiffs need only show that the government is deliberately

seeking to “induce, encourage or promote” private parties “to accomplish what it is

constitutionally forbidden to accomplish.” 413 U.S. at 465 (emphasis added).

Again, without this principle, all constitutional rights would be in jeopardy. If,

for example, the police know that a vehicle search they want to conduct would violate

the Fourth Amendment, they can’t evade the Constitution through the simple

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expedient of asking a bystander to do the search for them. As the Ninth Circuit put

it in a case involving airport searches, “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.” United States v. Davis, 482 F.2d 893, 904 (9th Cir. 1973).

That is exactly the vice of the Federal Government’s social media censorship

campaign. That campaign “actively encourage[s] conduct by ‘private’ persons or

entities that is prohibited to the government itself.” Id. When in a given case the

evidence before the Court demonstrates a deliberate governmental effort to

circumvent the Constitution by “induc[ing], encourag[ing], or promot[ing] private

persons to accomplish what [the state] is constitutionally forbidden to accomplish,”

Norwood, 489 U.S. at 465, no further satisfaction of any state action tests need be

proved. Indeed, against a background of government-enacted immunity for private

companies if they engage in the conduct the government asks them to perform,

nothing more need be shown at all. In such a case, an injunction must issue.

Conclusion

For the foregoing reasons, the Kennedy Plaintiffs respectfully ask the Court to

deny the stay and uphold the preliminary injunction issued below.

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September 20, 2023

Respectfully submitted,

Mary Holland

Counsel of Record

Jed Rubenfeld

Children’s Health Defense

853 Franklin Ave, Suite 511

Franklin Lakes, NJ 07417

202-854-1310

mary.holland@childrenshealthdefense.org

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