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

No. 23A243

______________________________________________________________________________

In The Supreme Court of the United States

VIVEK H. MURTHY, ET AL.,

Applicants,

v.

MISSOURI, ET AL.,

Respondents.

________________________________________

To the Honorable Samuel Alito, Associate Justice of the United States Supreme

Court and Circuit Justice for the Fifth Circuit

_______________________________________

On Application for a Stay of the Injunction Issued by the United States District

Court for the Western District of Louisiana

_______________________________________

BRIEF OF AMICA CURIAE

ANGELA READING IN SUPPORT OF RESPONDENTS

AND IN OPPOSITION TO STAY APPLICATION

_______________________________________

Thomas Brejcha

Counsel of Record

B. Tyler Brooks

Michael McHale

Christopher A. Ferrara

THOMAS MORE SOCIETY

309 W. Washington St., Suite 1250

Chicago, Illinois 60606

Telephone: (312) 782-1680

Facsimile: (312) 782-1887

tbrejcha@thomasmoresociety.org

tbrooks@thomasmoresociety.org

mmchale@thomasmoresociety.org

cferrara@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

______________________________________________________________________________

TABLE OF CONTENTS

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

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

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

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

B.

Injunctive Relief is Needed Because the Government Has

Disregarded the Most Basic Protections of the First Amendment. ....... 13

C.

Speech Deemed “Controversial” is Entitled to the Same, if Not

Greater, Constitutional Protections as Conventional Speech. .............. 16

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

i

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) ............................................................................................... 14

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) ............................................................................................... 15

Buckley v. Valeo,

424 U.S. 1 (1976) ................................................................................................... 17

Citizens United v. FEC,

558 U.S. 310 (2009) ......................................................................................... 13, 16

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) ............................................................................................... 11

Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) ..................................................................................... 13, 14

Lamont v. Postmaster General,

381 U.S. 301 (1965) ............................................................................................... 12

Mahanoy Area School District v. B.L.,

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

Martin v. Struthers,

319 U.S. 141 (1943) ............................................................................................... 12

Mills v. Alabama,

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

ii

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

2023 WL 4335270 (W.D. La. July 4, 2023) ........................................................... 11

Missouri v. Biden,

No. 23-30445, 2023 WL 5821788

(5th Cir. Sept. 8, 2023) ................................................................................ 2, 11, 13

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ......................................................................................... 14, 16

Packingham v. v. North Carolina

137 S. Ct. 1730 ...................................................................................................... 12

Reading v. Duff et al.,

Case No. 1:23-cv-01469-KWM-EAP (D.N.J.) ............................................. 1, 2, 4, 12

Red Lion Broadcasting Co. v. FCC,

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

Schacht v. United States,

398 U.S. 58 (1970) ................................................................................................. 16

Snyder v. Phelps,

562 U.S. 443 (2011) ............................................................................................... 16

Sorrell v. IMS Health Inc.,

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

Stanley v. Georgia,

394 U.S. 557 (1969) ............................................................................................... 12

Terminiello v. Chicago,

337 U.S. 1 (1949) ................................................................................................... 16

Texas v. Johnson,

491 U.S. 397 (1989) ............................................................................................... 16

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 .................................................................................................. 13

iii

Other

John Milton, Paradise Lost, Book IV (1674) ................................................................. 4

William Pitt (the Younger), British House of Commons, 18 Nov. 1783 ...................... 4

iv

INTEREST OF AMICA CURIAE1

Amica Curiae Angela Reading, a mother and former school board member,

is the victim of government censorship. She is the plaintiff in a pending civil rights

case, Reading v. Duff et al., Case No. 1:23-cv-01469-KWM-EAP (D.N.J.), 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 Plaintiffs here and others are entitled to 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. But the injunction in the present case protects all “posted

1 No party’s counsel authored this brief in whole or part; and no person other than

this amica or her counsel contributed money intended to fund the brief.

1

social-media content containing protected free speech.” Missouri v. Biden, No. 2330445, 2023 WL 5821788, at *32 (5th Cir. Sept. 8, 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 First

Amended-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 another

victim of recent efforts by government officials across the country to create, extralegally, 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.

SUMMARY OF ARGUMENT

Amica Curiae Angela Reading submits this brief in support of the injunction

and against the government’s requested stay.

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

2

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 nonthreatening 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 this 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 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.

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 and Mrs. Reading’s motion for preliminary

injunction remain pending. In the defendants’ oppositions to her motion for

preliminary injunction, they do not deny the relevant facts, offer no evidence that

3

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 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/q-oro-ed4-00008337

(last

visited

Sept. 17, 2023); John Milton, Paradise Lost, Book IV, 393-94 (1674) (“So spake the

Fiend, and with necessity, / The tyrant’s plea, excused his devilish deeds.”).

4

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 cat’s paw 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 injunction

was appropriate and should not be stayed or vacated, for the sake of our nation’s

perennial commitment to robust public debate without government interference.

5

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-Dix-Lakehurst (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 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

6

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 intervention by

public officials. The school superintendent forwarded Hall’s implicit request for

censorship of Mrs. Reading to the local police chief.

7

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 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 depicted Mrs. Reading as a security threat to

“many families” which the Joint Base leadership was taking “very seriously.” The

8

Joint Base officials continued a frenzy of communications with numerous law

enforcement agencies so as to “threat-tag” Mrs. Reading’s speech. On December 5,

the New Jersey Office of Homeland Security and Preparedness, in response to the

Joint Base’s “threat-tagging” of 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 contrive

to trigger a widespread law enforcement investigation and state of alarm over Mrs.

Reading’s protected speech by “threat-tagging” it 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 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

9

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 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 injunction is an urgently needed first step in rolling back

government’s alarming encroachments on First Amendment liberty over the past

few years.

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.

10

II.

THE

INJUNCTION

DISCOURSE.

PROPERLY

PROTECTS

POLITICAL

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 Plaintiffs 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, 2023 WL 5821788, at *27 (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 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)

11

(“[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 self-governance 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 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).

12

“[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, 2023 WL 5821788, at *11 (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. Denial of a stay and affirmance by this Court would help Mrs. Reading

and millions of other Americans by restoring the proper operation of the

marketplace of ideas at all levels of government.

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 Plaintiffs 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

13

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, 390, (1969) and citing

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)).

A crucial corollary to the constitutionally-mandated 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 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.

14

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 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 a decisive blow in this case—and it was long overdue.

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

15

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 . . . 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 self-government 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

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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 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.

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CONCLUSION

For these reasons, amica curiae Angela Reading respectfully asks the Court

to not grant a stay and to affirm the injunction.

Respectfully submitted, this 20th day of September, 2023.

/s/ Thomas Brejcha

Counsel of Record

B. Tyler Brooks

Michael McHale

Christopher A. Ferrara

THOMAS MORE SOCIETY

309 W. Washington St., Suite 1250

Chicago, Illinois 60606

Telephone: (312) 782-1680

Facsimile: (312) 782-1887

tbrejcha@thomasmoresociety.org

tbrooks@thomasmoresociety.org

mmchale@thomasmoresociety.org

cferrara@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

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