Amicus Curiae Brief — Children's Health Defense, Petitioner v. Meta Platforms, Inc., a Delaware corporation, et al.

No. 24-732

In The

Supreme Court of the United States

_____________

CHILDREN’S HEALTH DEFENSE,

Petitioner,

v.

META PLATFORMS, INC., A DELAWARE CORPORATION,

ET AL.,

Respondents.

_____________

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

______________

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

______________

John W. Whitehead

Counsel of Record

William E. Winters

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 3

1. The Case Presents an Excellent Vehicle

for the Court to Address Substantive Issues

Raised in Murthy Because Meta Partnered

with the Government to Suppress

Petitioner’s Speech………………………….3

2. The Court Should Grant Certiorari

Because the Government’s and Meta’s

Suppression of Speech is Extensive and

Likely to Reoccur…………………………….7

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Children’s Health Defense v. Meta Platforms,

Inc., 112 F.4th 742 (9th Cir. 2024) .. 1, 4, 6-9, 11, 12

Kleindienst v. Mandel, 408 U.S. 753 (1972) ............ 11

Missouri v. Biden, 83 F.4th 350 (5th Cir.

2023) ........................................................4, 6, 8, 11, 12

Murthy v. Missouri, 603 U.S. 43 (2024) ........ 2, 4, 5, 8

Nat’l Institute of Family & Life Advocates v.

Becerra, 585 U.S. 755 (2018) .......................... 11, 12

Nat’l Rifle Ass’n of Am. v. Vullo, 144 S.Ct. 1316

(2024) ................................................................... 3, 6

Norwood v. Harrison, 413 U.S. 455 (1973) ........... 3, 4

Reed v. Town of Gilbert, 576 U.S. 155 (2015) ........... 3

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ................................................. 3

TikTok Inc. v. Garland, 604 U.S. ___ (2025) ............. 8

Statutes

47 U.S.C. § 230 ................................................. 8, 9, 10

iii

Other Materials

Mark Zuckerberg, Letter to the House Judiciary

Committee, X (Aug. 26, 2024), available at

https://x.com/judiciarygop/status/18282017805

44504064?mx=2 .................................................. 5, 6

Naomi Nix et al., Meta ends fact-checking,

drawing praise from Trump, THE

WASHINGTON POST (Jan. 7, 2025), available

at https://www.washingtonpost.com/technolog

y/2025/01/07/meta-factchecking-zuckerberg/ ... 9, 10

Paula Berg, Toward a First Amendment Theory

of Doctor–Patient Discourse and the Right To

Receive Unbiased Medical Advice, 74 B.U. L.

REV. 201 (1994) ..................................................... 12

The Cover Up: Big Tech, the Swamp, and

Mainstream Media Coordinated to Censor

Americans’ Free Speech, HOUSE COMMITTEE

ON OVERSIGHT & ACCOUNTABILITY (Feb. 8,

2023), available at

https://oversight.house.gov/release/the-coverup-big-tech-the-swamp-and-mainstreammedia-coordinated-to-censor-americans-freespeech/ ..................................................................... 7

Tony Romm, Trump threatens to veto major

defense bill unless Congress repeals Section

230, a legal shield for tech giants, THE

WASHINGTON POST (Dec. 1,

2020), available at https://www.washingtonpo

st.com/technology/2020/12/01/trump-repealsection-230-ndaa/ .................................................... 9

iv

Will Duffield, Jawboning against Speech: How

Government Bullying Shapes the Rules of

Social Media, CATO POLICY ANALYSIS

no. 934 (Sept. 12, 2022), available at

https://www.cato.org/sites/cato.org/files/202209/PA_934.pdf ......................................................... 7

Will Oremus, Zuckerberg expresses regrets over

covid misinformation crackdown, THE

WASHINGTON POST (Aug. 27, 2024),

available at

https://www.washingtonpost.com/technology/2

024/08/27/meta-zuckerberg-covidmisinformation-jordan-white-house/ .................... 10

1

INTEREST OF AMICUS CURIAE1

The Rutherford Institute is a nonprofit civil

liberties

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

president, John W. Whitehead, the Institute provides

legal assistance at no charge to individuals whose

constitutional rights have been threatened or violated

and educates the public about constitutional and

human rights issues affecting their freedoms. The

Rutherford Institute works tirelessly to resist

tyranny and threats to freedom by seeking to ensure

that the government abides by the rule of law and is

held accountable when it infringes on the rights

guaranteed by the Constitution and laws of the

United States. One of the purposes of the Institute is

to advance the preservation of the freedoms our

nation affords its citizens – in this case, the rights

under the First Amendment to freedom of speech and

freedom from censorship.

SUMMARY OF THE ARGUMENT

The Court should grant certiorari for two reasons.

First, this case touches on a question left unanswered

Pursuant to Rule 37.6, Amicus Curiae affirms that no

counsel for a party authored this brief in whole or in part, and

no person or entity other than Amicus Curiae, its members, or

its counsel made a monetary contribution intended to fund this

brief’s preparation or submission. Pursuant to Rule 37.2, Amicus

Curiae gave timely notice of its intent to file this brief to counsel

of record for each party in this proceeding (because Science

Feedback was dismissed from the lawsuit for insufficient service

of process, Children’s Health Defense v. Meta Platforms, Inc., 112

F.4th 742, 767-68 (9th Cir. 2024), is not a party to this current

proceeding, and no counsel for Science Feedback has entered an

appearance, no notice was sent to Science Feedback).

1

2

in last term’s decision in Murthy v. Missouri, 603 U.S.

43 (2024), “one of the most important free speech

cases to reach this Court in years.” Id. at 77 (Alito, J.,

dissenting). Specifically, the Court did not reach the

second question: whether the government’s

challenged conduct transformed private social-media

companies’ content moderation decisions into state

action and violated respondents’ First Amendment

rights. Instead, the Court held – over a strong dissent

– that two States and five social media users lacked

standing to enjoin government agencies and officials

from pressuring or encouraging social media

companies to suppress protected speech. The Petition

here addresses a closely related issue to that

unanswered substantive question from Murthy

because the platform itself (Meta) is a defendant in

this lawsuit.

Second, the Petition raises broader concerns

regarding the close relationship between the

Government and social media companies and the

accompanying implications for the constitutional

rights of all citizens. Given the risk of further

suppression of free speech by social media platforms

working hand in glove with governmental agencies

and officials, the Court should clearly establish the

threshold standards for when private conduct

transforms into state action in the context of

governmental interactions with social media

platforms.

3

ARGUMENT

1.

The Case Presents an Excellent Vehicle

for the Court to Address Substantive

Issues Raised in Murthy Because Meta

Partnered with the Government to

Suppress Petitioner’s Speech

“[I]t is well established that the First

Amendment’s hostility to content-based regulation

extends not only to restrictions on particular

viewpoints, but also to prohibition of public discussion

of an entire topic.” Reed v. Town of Gilbert, 576 U.S.

155, 169 (2015) (cleaned up). This Court has

explained that “Government discrimination among

viewpoints—or the regulation of speech based on the

specific motivating ideology or the opinion or

perspective of the speaker—is a more blatant and

egregious form of content discrimination.” Id. at 168

(cleaned up). The First Amendment forbids this

“egregious form of content discrimination in which

the government targets not subject matter, but

particular views taken by speakers on a subject.”

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 829 (1995). This is because “[a]t the heart of

the First Amendment’s Free Speech Clause is the

recognition that viewpoint discrimination is uniquely

harmful to a free and democratic society.” Nat’l Rifle

Ass’n of Am. v. Vullo, 144 S.Ct. 1316, 1326 (2024).

The fact that the actual suppression of disfavored

viewpoints may be carried out by a private actor

working in partnership with the Government makes

no difference as it is “axiomatic that [the Government]

may not induce, encourage or promote private persons

4

to

accomplish

what

[the

Government]

is

constitutionally forbidden to accomplish.” Norwood v.

Harrison, 413 U.S. 455, 465 (1973). Accordingly,

government agencies and officials may not

significantly encourage and partner with private

entities whereby the Government is “entangle[d] in a

party’s independent decision-making” to suppress

speech which the Government cannot censor directly

on its own. Missouri v. Biden, 83 F.4th 350, 373-75,

381-82 (5th Cir. 2023) (“The [government] officials do

not deny that they worked alongside the [social

media] platforms”), rev’d on other grounds and

remanded sub nom. Murthy v. Missouri, 603 U.S. 43

(2024). That was the case in Murthy, and that is the

case here because “Meta’s relevant First Amendment

rights . . . do not give Meta an unbounded freedom to

work with the Government in suppressing speech on

its platforms.” Children’s Health Defense v. Meta

Platforms, Inc., 112 F.4th 742, 789 (9th Cir. 2024)

(Collins, J., dissenting).

The Petition raises “novel, difficult, and important

legal questions,” and “weighty First Amendment

interests [are] at stake in this case.” Id. at 769

(Collins, J., dissenting). That alone should be

sufficient for this Court to grant the Petition. In

Murthy, the “record reflect[ed] that the Government

defendants played a role in at least some of the

platforms’ moderation choices,” but the plaintiffs did

“not seek to enjoin the platforms from restricting any

posts or accounts” and instead sought “to enjoin

Government agencies and officials from pressuring or

encouraging the platforms to suppress protected

speech in the future.” Murthy, 603 U.S. at 44. Because

the Murthy plaintiffs failed to demonstrate they had

5

standing to enjoin the Government’s conduct, the

Court did not reach the salient questions, including

what constitutes state action when the Government

works with social media companies to suppress

speech. See id. at 56 (“We begin—and end—with

standing. At this stage, neither the individual nor the

state plaintiffs have established standing to seek an

injunction against any defendant. We therefore lack

jurisdiction to reach the merits of the dispute.”). This

case raises similar First Amendment issues, but

against the platform.

Shortly after the Ninth Circuit issued its decision

below on August 9, 2024, Respondent Mark

Zuckerberg, on behalf of Meta Platforms, Inc., sent a

letter to the U.S. House of Representatives

Committee on the Judiciary, stating that

[i]n 2021, senior officials from the Biden

Administration, including the White

House, repeatedly pressured our teams

for months to censor certain COVID-19

content . . . . Ultimately, it was our

decision whether or not to take content

down, and we own our decisions,

including COVID-19-related changes we

made to our enforcement in the wake of

this pressure. I believe the government

pressure was wrong . . . and we’re ready

to push back if something like this

happens again.

Mark Zuckerberg, Letter to the House Judiciary

Committee, X (Aug. 26, 2024), available at

https://x.com/judiciarygop/status/1828201780544504

064?mx=2 (emphasis added).

6

Thus, contrary to the Ninth Circuit’s

characterization of Meta as “a purely private actor”

and “victim” of governmental coercion, Children’s

Health Defense, 112 F.4th at 759, and even though the

Government did indeed try to coerce Meta to do its

bidding in violation of the First Amendment,

Missouri, 83 F.4th at 381-82, 397-99, Meta itself

admits that it was neither acting completely

independently of the Government nor forced to censor

speech, as it could have pushed back against the

Government. Zuckerberg, Letter to the House

Judiciary Committee, X (Aug. 26, 2024). Instead,

Meta was significantly encouraged by the

Government and decided on its own to join and

partner with the Government in advancing the

Government’s agenda at the Government’s direction

in a way where the Government was heavily

“entangle[d] in [Meta’s] independent decisionmaking” to suppress and censor Petitioner’s speech.

See Missouri, 83 F.4th at 373-75, 381-82; Pet. 10-14,

17-19. “Because this case comes . . . at the motion-todismiss stage, the Court assumes the truth of wellpleaded factual allegations and reasonable inferences

therefrom.” Vullo, 144 S.Ct. at 1322 (cleaned up);

Children’s Health Defense, 112 F.4th at 750. Thus,

there are sufficient grounds for the Petitioner’s claim

to proceed against Meta to determine if Meta was a

state actor in joining with the Government to

suppress Petitioner’s speech.

The Court should grant certiorari to address the

issue head-on and provide the nation’s lower courts

with much needed guidance as to what constitutes

state action by a private entity and therefore

implicates the First Amendment in these and

7

analogous circumstances. Indeed, the Ninth Circuit

“acknowledge[d] that there is a degree of uncertainty

in determining how specific the details of an

agreement must be before a plaintiff can be said to

have plausibly alleged joint action.” Children’s Health

Defense, 112 F.4th at 758. Now is the time to answer

that question.

2.

The Court Should Grant Certiorari

Because the Government’s and Meta’s

Suppression of Speech is Extensive and

Likely to Reoccur

As the House Committee on Oversight and

Accountability stated, social media companies “are

powerful entities that have the potential to influence

public opinion and behavior.” The Cover Up: Big Tech,

the Swamp, and Mainstream Media Coordinated to

Censor Americans’ Free Speech, HOUSE COMMITTEE

ON OVERSIGHT & ACCOUNTABILITY (Feb. 8, 2023),

available at https://oversight.house.gov/release/thecover-up-big-tech-the-swamp-and-mainstreammedia-coordinated-to-censor-americans-free-speech/.

That influence is quite tempting to the Government,

especially if it can control that influence in secret. “By

working through intermediaries, government can

suppress speech quickly, without broad support, and

potentially without alerting anyone of its

involvement.” Will Duffield, Jawboning against

Speech: How Government Bullying Shapes the Rules

of

Social

Media,

CATO POLICY ANALYSIS

no. 934, p.5 (Sept.

12,

2022),

available

at

https://www.cato.org/sites/cato.org/files/202209/PA_934.pdf.

8

Thus, “[t]oo often in recent years, the government

has sought to censor disfavored speech online, as if

the internet were somehow exempt from the full

sweep of the First Amendment.” TikTok Inc. v.

Garland, 604 U.S. ___, ___ (2025) (Gorsuch, J.,

concurring) (slip op., at 2) (citing Murthy, 603 U.S. at

76-78 (Alito, J., dissenting)). Indeed, as the Fifth

Circuit found, “[f]or the last few years—at least since

the 2020 presidential transition—a group of federal

officials has been in regular contact with nearly every

American social-media company about the spread of

‘misinformation’ on their platforms.” Missouri, 83

F.4th at 359.

Unfortunately, internet platforms are “far more

vulnerable to Government pressure than other news

sources” because the platforms “are critically

dependent on the protection provided by §230 of the

Communications Decency Act . . . , which shields them

from civil liability for the content they spread.”

Murthy, 603 U.S. at 80 (Alito, J., dissenting). The

dissent below hit the nail on the head when it stated

that “[h]aving specifically and purposefully created

an immunized power for mega-platform operators to

freely censor the speech of millions of persons on those

platforms, the Government is perhaps unsurprisingly

tempted to then try to influence particular uses of

such dangerous levers against protected speech

expressing viewpoints the Government does not like.”

Children’s Health Defense, 112 F.4th at 786 (Collins,

J., dissenting). For example, the dissent noted that

CHD points, in particular, to April 2019

public remarks by House Speaker Nancy

Pelosi in which she raised the possibility

of removing the immunity for hosting

9

third-party content that is granted to

social media platforms by § 230 of the

Communications Act of 1934. In those

remarks, the Speaker noted that, when

the subject of § 230 is raised with social

media companies, “you really get their

attention,” and she stated that it was

“not out of the question” that § 230’s

immunity “could be removed” by

Congress. As she explained, “for the

privilege of 230, there has to be a bigger

sense of responsibility” on the part of

social media companies.

Id. at 770 (Collins, J., dissenting) (footnote omitted).

Similarly, President Trump threatened to repeal

§ 230 during his first term. See, e.g., Tony Romm,

Trump threatens to veto major defense bill

unless Congress repeals Section 230, a legal

shield for tech giants, THE WASHINGTON POST (Dec. 1,

2020), available at https://www.washingtonpost.com/

technology/2020/12/01/trump-repeal-section-230ndaa/.

While Meta has recently said it will change its

stance on fact-checking and removing speech from its

platform, that is likely an effort to align with the new

political party wielding governmental power. In

response to social media platforms policing speech

over the past several years, “Trump and leading

Republicans increasingly fought back, decrying the

efforts as a form of censorship and launching lawsuits

and congressional investigations,” and “[n]ow, with

Trump returning to office, social networks are racing

to roll back those policies as they position themselves

10

to answer to a Republican administration and

Congress.” Naomi Nix et al., Meta ends factchecking, drawing praise from Trump, THE

WASHINGTON POST (Jan. 7,

2025),

available

at https://www.washingtonpost.com/technology/2025/

01/07/meta-factchecking-zuckerberg/.

Accordingly,

regarding Meta’s letter to the House Judiciary

Committee, which was discussed above,

David Kaye, a professor at UC Irvine

School of Law and former U.N. special

rapporteur on freedom of expression,

was more critical of the letter, which he

called “cynical” and “obsequious.”

Zuckerberg’s

missive,

he

said,

“reinforces the sense of many activists

around the world that Zuckerberg does

not necessarily stand with his rules but

can be swayed by government pressure

— even while his letter tries to disclaim

that perception.” Meta declined to

comment beyond confirming the letter’s

authenticity.

Will Oremus, Zuckerberg expresses regrets over covid

misinformation crackdown, THE WASHINGTON

POST (Aug.

27,

2024),

available

at

https://www.washingtonpost.com/technology/2024/08

/27/meta-zuckerberg-covid-misinformation-jordanwhite-house/.

Because social media companies will apparently

align themselves and cooperate with the ruling

political party to preserve their § 230 protections,

even if it means conspiring or partnering with the

Government to help the Government indirectly

11

violate the Constitution, these issues are not a one-off

and they are not going away. A political party in

power may change and desire to censor speech again.

Unless private entities, like Meta, who willingly

conspire or agree to partner with the Government in

pursuing an unconstitutional agenda for their own

benefit, are held accountable as state actors if they

violate the Constitution, then this threat to the First

Amendment will continue. The dissent below warned

that the consequence of not stopping this threat

would mean that the Government can

create a special immunized power for

private entities to suppress speech on a

mass scale and then request and receive,

from those private entities, an ability to

influence the exercise of those levers of

censorship. That would thwart the First

Amendment’s core purpose to prevent

the government from tilting public

debate in a preferred direction.

Children’s Health Defense, 112 F.4th at 790-91

(Collins, J., dissenting) (cleaned up). This is

anathema to the First Amendment, which protects

the right to “receive information and ideas,”

Kleindienst v. Mandel, 408 U.S. 753, 762 (1972),

instead of receiving only what the Government

considers to be the “correct” information and ideas.

Of additional concern is that the “deplatformed”

topics include discussions of medicine and public

health, sometimes by professionals in those fields.

See, e.g., Missouri, 83 F.4th at 359 & n.1. As this

Court has recognized, “[p]rofessionals might have a

host of good-faith disagreements, both with each

12

other and with the government, on many topics in

their respective fields.” Nat’l Institute of Family &

Life Advocates v. Becerra, 585 U.S. 755, 772 (2018).

But “when the government polices the content of

professional speech, it can fail to preserve an

uninhibited marketplace of ideas in which truth will

ultimately prevail,” and “the people lose when the

government is the one deciding which ideas should

prevail.” Id. (internal quotation marks omitted).

Indeed, “throughout history, governments have

manipulated the content of doctor-patient discourse

to increase state power and suppress minorities.” Id.

at 771 (cleaned up) (quoting Paula Berg, Toward a

First Amendment Theory of Doctor–Patient Discourse

and the Right To Receive Unbiased Medical Advice, 74

B.U. L. REV. 201, 201-02 (1994)).

Social media companies, like Meta, should be held

accountable as state actors for allowing the

Government to “significantly encourage[] the

platforms’ decisions by commandeering their

decision-making processes,” see Missouri, 83 F.4th at

382, to censor disfavored viewpoints in violation of the

First Amendment. The Petition squarely addresses

the constitutionality of Meta’s (and other platforms’)

“right to team up with the Government to suppress the

speech of particular speakers, or on particular topics,

on such immunized mega-platforms”—a right which

the dissent below found “no basis for.” Children’s

Health Defense, 112 F.4th at 790 (Collins, J.,

dissenting). Because the issues raised in the Petition

are extensive and represent a clear and ongoing

threat to constitutional protections for millions of

citizens, the Court should grant certiorari to address

them and ensure that First Amendment protections

remain robust in the digital age.

13

CONCLUSION

For the foregoing reasons, and those described in

the Petition, the Court should grant the Petition and

reverse the Ninth Circuit’s ruling.

Respectfully submitted,

John W. Whitehead

Counsel of Record

William E. Winters

Christopher F. Moriarty

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae