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ADF to SCOTUS: Govt can't coerce social media companies to act as speech police

ADF attorneys file friend-of-the-court brief urging high court to uphold appeals court ruling, clarify that government cannot engage in third-party censorship
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WASHINGTON – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Friday on behalf of the National Institute of Family and Life Advocates, urging the U.S. Supreme Court to uphold an appeals court ruling in Murthy v. State of Missouri, a case that seeks to hold the Biden administration accountable for coercing major social media corporations to censor views with which officials disagree.

The U.S. Court of Appeals for the 5th Circuit ruled in September that officials within the Biden administration violated the First Amendment’s guarantee of free speech by pressuring Facebook, Twitter, and Google into silencing dissenting voices on a wide range of hot-button cultural issues, including climate change, abortion, economic policy, gender identity, and COVID-19 policies.

“The First Amendment guarantees that all Americans can express viewpoints and ideas without fear of government punishment—including when it’s carried out by a third party,” said ADF Senior Counsel and Senior Vice President of Corporate Engagement Jeremy Tedesco. “When the government hides behind third parties like Facebook and YouTube to pick winners and losers on matters of public concern, we all lose. It’s wrong when Silicon Valley censors speech, and when the government pressures these companies to do so, it also violates the First Amendment.”

As ADF attorneys underscore in the brief, the administration’s communication with social media platforms sent a clear message that they had to comply with what amounted to directives from the federal government to censor online content. In one email exchange with several YouTube officials, for example, a White House official stressed that his concerns were “shared at the highest (and I mean highest) levels” of the administration. The result, as the 5th Circuit ruled, was that the White House was effectively making content moderation decisions for the social media platforms, which violated the First Amendment.

As the brief explains, NIFLA—which serves 1,770 pro-life pregnancy resource centers, including over 1,400 that provide medical services such as free ultrasounds and STI testing and treatment—is frequently targeted for censorship by government officials who are openly hostile to pro-life advocates’ views. In National Institute of Family and Life Advocates v. Becerra, ADF attorneys represented NIFLA in its successful Supreme Court challenge of a California state law that would have required NIFLA members and other pro-life pregnancy centers in the state to promote abortion.

The brief also points out that powerful social media companies’ vague and subjective content moderation policies set the stage for regulators to use those companies to punish people who express disfavored views.

According to ADF’s 2023 Viewpoint Diversity Score Business Index, which measures corporate respect for free speech and religious liberty, 64% of the 75 largest tech and finance companies rely on subjective terms like “hate speech” “intolerance,” or “misinformation.”

“These vaguely worded policies are a threat to everyone—because they invite subjective judgement, which easily leads to silencing certain viewpoints,” Tedesco continued. “Along with a strong Supreme Court ruling affirming that government censorship is just as dangerous when it’s carried out by third parties, we are hopeful that this serves as a much-needed wake-up call for the major corporations we depend on every day. Those corporations should not be complicit in violating the free speech rights of everyday citizens.”

Samuel Salario, one of more than 4,500 attorneys in the ADF Attorney Network, assisted with the brief.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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Jeremy Tedesco
Jeremy Tedesco
Senior Counsel, Senior Vice President of Corporate Engagement
Jeremy Tedesco serves as senior counsel and senior vice president of communications for Alliance Defending Freedom.