The First Amendment prohibits government censorship of your speech, even when it tries to act through a third party.
In the confusion and chaos of the COVID-19 pandemic, local and federal governments were quick to act in questionable ways. They shut down businesses, closed schools, limited person-to-person interactions, and imposed other restrictions in the name of citizens’ health.
A particularly controversial action was mandating vaccinations in order to participate in basic social exchanges, like going to a ballgame or working in person. Many Americans—including citizens of Louisiana and Missouri—made a personal choice not to get vaccinated. They shared their concerns about the COVID-19 vaccines and boosters with their communities on social media platforms, hoping to spark conversation and public debate.
For this valid exercise of their right to free speech, major platforms such as Facebook, Twitter, YouTube, and others dealt severely with these skeptics with unprecedented censorship. The platforms treated their skepticism as if it were a dangerous threat to the scientific method, public health, and the very foundations of our democratic society. Platforms removed users’ posts, marked posts with “Misinformation/Disinformation” tags, or banned users altogether.
At the time, censorship proponents argued that their extreme measures were legal because private companies, not the government, took all the action. Private platform owners had the right to engage in independent content moderation as part of their business model in a free economy. If only that were the case.
Case Background
When billionaire Elon Musk acquired Twitter, he released the “Twitter Files.” This report revealed that government agencies were actually in regular communication with social media platforms like Twitter and Facebook. These interactions went beyond the occasional e-mails or texts between employees. The collaborators developed entire subdivisions of social media platforms and customized online portals to give federal bureaucrats daily access to social media content moderators.
Through these channels, the government insisted that social media platforms censor and silence views it considered dangerous or not appropriate for public debate. Private entities, understanding that the government was watching them closely, cooperated with state institutions to cripple the digital public forum on one of the most important issues of the day.
Had the government attempted to censor such speech directly on its own, the courts would have instantly met the bureaucrats with swift and severe rebuke. Such actions clearly violate the First Amendment-protected free speech rights of social media platform users. Yet, because these bureaucrats hid behind a thin veil of “private-public cooperation,” they were able to skirt the Constitution. Temporarily.
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What’s at Stake
The government may not delegate its dirty work by twisting the arms of private companies to do what it wants. The federal district court for the Western District of Louisiana affirmed that principle. The court found the government’s campaign of pressuring social media companies to censor disfavored content violated the First Amendment.
The district court described the government’s conduct as “arguably…the most massive attack against free speech in United States’ history.” All Americans should be deeply concerned that our government abused the extraordinary power of the state to prevent citizens from speaking their minds and hearing the dissenting views of others—silencing our robust marketplace of ideas.
The appellate court rightly upheld this decision—and now the case is before the Supreme Court of the United States.
Mountain States signed onto an amicus brief in support of Louisiana and Missouri as the two states seek to vindicate the rights of their citizens. The brief offers a clear framework for determining whether government involvement in the alleged decisions of private parties to suppress speech brings the First Amendment into play. Where the government pressures one person to silence another, the government has violated the Constitution.
In some contexts, even the mere asking of private companies to censor speech can be a violation of our rights. Why? Because the very power of government implies a threat: if companies do not cooperate, they may suffer consequences. For that reason and so many others, the Constitution prohibits the government from deciding which views should or should not be expressed in the public square.
Case Timeline
- May 2022: Louisiana and Missouri file their complaint in the US District Court for the Western District of Louisiana.
- July 2023: The district court granted a preliminary injunction prohibiting the federal government from pressuring or inducing private social media companies to censor speech.
- October 2023: The United States Court of Appeals for the Fifth Circuit partly affirms the district court’s ruling.
