Amicus Brief: Murthy v. Missouri

This case involves, in the words of the district court that first took it up, “the most massive attack against free speech in United States’ history.” Missouri, Louisiana, and other state, individual, and associational plaintiffs have uncovered substantial evidence of the federal government coercing and otherwise pressuring social media companies to take down constitutionally protected speech. Following July 2021 revelations by the White House press secretary that federal officials “are in regular touch with these social media platforms” and pushing the platforms to take down constitutionally protected speech, the plaintiffs sued in May 2022 and obtained more than 20,000 pages of documents in discovery that showed repeated, systematic instances of the government using strong-arm tactics to pressure tech companies into taking down speech.

For example, after badgering one social-media company for what the White House viewed as insufficient action, the national digital strategy director emailed the company to state that his concern was “shared at the highest (and I mean the highest) levels of the WH [White House].” Censored topics included “racial justice, the U.S. withdrawal from Afghanistan, and the return of U.S. [s]upport of Ukraine.”

The district court granted plaintiffs an injunction against the public-private collusion that was affirmed on appeal, in modified form, by the Fifth Circuit. The government is now asking the Supreme Court to reverse the Fifth Circuit.

Grounded in the First Amendment, the Manhattan Institute’s brief conveys our opposition to government-tech collusion and our commitment to free and open public discourse. Sometimes Big Tech is more than happy to do the government’s bidding because the individual corporate actors agree with those policies—but that willing cooperation does not lessen the First Amendment injury.

We also partnered with React19—a patient-advocacy organization dedicated to providing physical, emotional, and financial support for those suffering lasting side effects from Covid-19 vaccination—along with three vaccine-injured individuals, to highlight the importance of scientific debate. These victims suffered a loss of community, an inability to share medical advice, suspension of their access to social media, and erasure of their shared personal stories and memorials to loved ones. The harms experienced by censored Covid-vaccine-injured Americans demonstrate the importance of ensuring that the government plays no role in regulating constitutionally protected speech, either directly or acting in concert with private-sector actors.  

Acknowledgments: Special thanks to former law school associate David Sacks.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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