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Biden the Bolshevik? Vax injury groups, GOP, RFK Jr. challenge social media coercion at SCOTUS

Administration compared to Italian government for punishing Galileo over his "Copernican and heliocentric theories" in Supreme Court briefs against censorship of COVID wrongthink.

Published: February 12, 2024 11:00pm

Around Christmas, advocacy groups for journalists, academics, doctors and big business implored the Supreme Court to withhold giving a lump of coal to public officials for pressuring social media to censor speech on their behalf, citing national security, public health and their own rights.

The week before Valentine's Day, dozens of First and Second Amendment, conservative, medical and COVID-19 vaccine injury groups, as well as a fifth of the House GOP conference and President Biden's top independent challenger, asked the justices for some love.

They flooded SCOTUS with friend-of-the-court briefs supporting Missouri, Louisiana and censored doctors, who replied the previous week to the feds' opening brief in the case from December. The Supreme Court will hear oral arguments in the Murthy v. Missouri case March 18 on whether to reinstate the injunction it stayed against the government.

The feds "now complain that this Court cannot stop them because the government must be allowed to speak freely," an inversion of the First Amendment that would "protect the government’s campaign to constrain private actors," the states and doctors wrote Feb. 2.

There was nothing voluntary about officials' directives to tech platforms to remove even "true but shocking" content, heaping "relentless sarcasm and abuse" on them for moving too slowly and threatening regulatory or even criminal proceedings for noncompliance, the brief says.

The feds object that "anyone could sue whenever" the government silences a speaker under the "right to listen" theory, but "it is not clear why that would be a bad outcome," according to the states and doctors. The high court "routinely expresses the opposite concern" that readers and listeners aren't vindicating their rights because the "economic injury" is too small.

Fifteen states and the Arizona Legislature joined Montana Attorney General Austin Knudsen in defending the legal standing of states under the "relaxed" threshold in First Amendment cases and specifically of Louisiana and Missouri because the "federal censorship campaign" targeted their own social media posts. 

States also have a "quasi-sovereign interest in hearing and engaging with [...] their citizens’ actual views on all manner of public issues, including COVID-19 vaccination policies, mask mandates, and election integrity issues," the brief says.

"Perhaps it will seem like litigation hyperbole, but the fate of the freedom of speech in America may actually depend on this case," repeat censorship target Robert F. Kennedy Jr.'s brief says. 

The parties rely on the wrong "premise," that the case turns on demonstrating "state action" by the feds through the tech platforms, which isn't required for "an injunctive suit against governmental officers," the independent presidential candidate said.

If the high court disagrees, Section 230 of the Communications Decency Act "should play a decisive role" in determining state action, according to Kennedy, citing a 1989 ruling on a similar liability shield law used by the government to pressure railroads to test employees' urine and let itself "participate" in the testing.

House Judiciary Committee Chairman Jim Jordan, R-Ohio, led nearly four dozen GOP lawmakers including six senators in supporting the injunction, which "rightfully halts the Administration’s unlawful conduct" including through threatening Section 230 protections for tech platforms.

Jordan's Weaponization of the Federal Government Subcommittee investigation revealed the private side of the coercion against YouTube, Facebook and more recently Amazon, whose internal communications confirm they took action under government pressure, paired with the "public relations campaign against the companies" led by President Biden himself, the brief says.

President Trump may yet be in office without the "government’s coercive manipulation of the marketplace of ideas" in the 2020 election season by "coerc[ing] speech about Biden Family influence peddling," they said.

The Association of American Physicians and Surgeons' brief scolds the American Medical Association for promoting censorship of purported COVID misinformation such as that published in AAPS's online journal. Its similar social media censorship lawsuit failed against then-House Intelligence Committee Chairman Adam Schiff, D-Calif.

"There are multiple historical examples of inadequately tested vaccines causing widespread harm," and COVID vaccines specifically were administered "without a risk-benefit analysis and informed consent," AAPS said. 

It accused the AMA of "implicitly" trying to censor "criticism of anything that may be called a vaccine in the future under yet another redefinition of that term," just as mRNA vaccines redefined the term, the brief says. "Surely there is a constitutional right to criticize future horrors that might emerge from genetic modification."

While sometimes private actors are "more than happy to do the government’s bidding [...] that willing cooperation doesn’t lessen the First Amendment injury," according to a joint brief by the Manhattan Institute and COVID vaccine-injury group React19, whose leaders' own censorship lawsuit against the feds is stayed pending the Missouri case.

The feds used similar "[w]ords of command" and "continuous and intimate involvement" with social media companies as did government officials faulted in legal precedents on coercion of intermediaries such as booksellers and classified listings, they said.

"Social media presents the most dangerous case of jawboning ever to reach this Court" because these platforms depend on a liability shield for their "livelihood" and threatened antitrust action could destroy their reputations, according to the brief.

"[T]he prior restraint created by ongoing censorship diminishes the quality and quantity of public discourse and disincentivizes free thought," they said, comparing the Biden administration to the Italian government for punishing Galileo Galilei over his "Copernican and heliocentric theories." 

"Government suppression of the media and of public discourse has preceded the backslide from democracy into authoritarianism throughout recorded history," the Informed Consent Action Network said, comparing the feds to the Bolsheviks, Nazi Party and Venezuelan President Nicolas Maduro.

Unlike those foreign regimes, however, "Americans have been largely ignorant to the fact that most of the COVID-19 vaccine-related content they are permitted to see online exists there only because it complies with the government’s chosen speech," according to the brief. 

The state-directed censorship of ICAN,  a frequent Freedom of Information Act filer and litigant, under the guide of "corporate freedom" had "devastating effects on its membership, administration, mission, and audience" across YouTube and Facebook, the brief says. 

The National Institute of Family and Life Advocates, whose First Amendment victory at SCOTUS in 2018 led California to drop its compelled speech rules for pro-life pregnancy centers, said the COVID and election speech allegedly suppressed by the feds "could have just as easily been pro-life speech."

NIFLA noted that Democratic Sen. Mark Warner, of Virginia, who filed a brief in favor of the feds, led a congressional effort pressuring Google to censor "misleading" search results about abortion clinics and explain how it would do so in 2022.

Five months later Warner demanded "a more expansive, proactive approach," claiming he was just enforcing Google's own policy.

A joint brief by many conservative and gun-rights groups may cause confusion because one of them shares a name with a pornography lobbying group known recently for challenging age-verification laws and a possible porn-focused resumption of Operation Choke Point.

The lawyer who wrote the brief, William J. Olson, told Just the News his client is the Free Speech Coalition that advocates for nonprofits against regulatory burdens and not the porn group. Their web addresses differ only by top-level domain.