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Missouri v. Biden (Amicus Brief)

On July 4, 2023, a federal district court judge issued a preliminary injunction prohibiting a broad range of federal government officials from communicating with social media companies for certain purposes. The Brennan Center, along with the Lawyers’ Committee for Civil Rights under Law and Common Cause, filed an amicus brief in the Fifth Circuit, arguing that the injunction interferes with civil rights organizations’ right to communicate with officials about election disinformation that threatens the communities they serve.

Last Updated: September 18, 2023
Published: August 1, 2023

In May 2022, the attorneys general of Missouri and Louisiana, along with a number of private plaintiffs, filed a lawsuit in the U.S. District Court for the Western District of Louisiana alleging that federal government officials violated the First Amendment by “coercing” or “significantly encouraging” social media companies to remove or demote content from their platforms. Plaintiffs contend that federal officials specifically targeted conservative-leaning speech across a range of topics, including the origin of the COVID-19 pandemic, the efficacy of masks and vaccines, the security of voting by mail, the integrity of the 2020 presidential election, and more.

On July 4, 2023, the district court judge issued a preliminary injunction prohibiting the defendants and anyone “acting in concert with them” from communicating with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” It also prohibits the defendants from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” non-government actors for these purposes. The injunction contains a number of exceptions, but because some of the prohibitions and exceptions appear to overlap, it is hard to know precisely what conduct is covered by the injunction and what is exempted.

Along with the Lawyers’ Committee for Civil Rights under Law and Common Cause, the Brennan Center filed an amicus brief in the Fifth Circuit Court of Appeals opposing the preliminary injunction and arguing that the decision should be vacated. The brief explains that information sharing between social media companies, government officials, and other relevant stakeholders, including amici, is critical to ensuring the integrity of elections and protecting the voting rights of all Americans. Amici argue that the district court’s injunction violates the First Amendment rights of amici and other civil society organizations by restricting their ability to speak freely with government officials about election disinformation and to petition the government for redress of grievances. In addition, because the scope of the injunction is overbroad and unclear, amici argue that the ruling will chill organizations and government actors from coordinating on important election integrity work.

On September 8, 2023, the Fifth Circuit issued its decision which found that the injunction was indeed overbroad and vague. The Fifth Circuit vacated much of the injunction, including its inclusion of third-party actors and those working “in concert with” the government. The ruling establishes that third-party actors have First Amendment protections and were not within the proper scope of the injunction, as the Brennan Center, along with Lawyer’s Committee and Common Cause, had argued in our amicus brief. Importantly, this ruling allows our organizations and other civil society organizations to continue their work protecting the public against election disinformation. 

However, the Fifth Circuit erred by finding that certain government agencies (specifically the White House, the Surgeon General, the CDC, and the FBI) were significantly entangled in platforms’ moderation decisions. They found that this rendered the platforms’ decisions “state actions,” even in the absence of any coercive language or threats by the CDC. As the Brennan Center previously argued, mere information sharing and advocacy by officials who lack the authority to coerce social media companies does not amount to state action. In fact, it is vital that government officials share relevant factual information about critical topics such as public health and elections.