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ARLINGTON, VA—Today, Americans for Prosperity Foundation (AFPF) filed an amicus brief with the U.S. Supreme Court to protect Americans against government censorship. Can the government censor speech through a surrogate? That’s the question before the justices in Murthy v. Missouri and NRA v. Vullo, two cases that illustrate how unelected bureaucrats use government power to censor speech by pressuring an intermediary to do the dirty work. The problem? It violates the Constitution.
“The First Amendment protects people from government censorship,” said AFPF Senior Policy Counsel Cynthia Crawford. “They can’t silence you directly, and they can’t demand other parties do their unconstitutional bidding. That’s what at stake in these cases.”
Background: In Murthy v. Missouri, an army of government bureaucrats at the White House, the FBI, the CDC, and a host of others acted through social media platforms to censor a broad range of speech that challenged the government’s viewpoint on urgent and developing topics, such as Covid-19, vaccinations, and elections. In NRA v. Vullo, the Superintendent of New York’s Department of Financial Services pressured insurance companies to stop doing business with the National Rifle Association (NRA), citing “reputational risk” from the NRA’s advocacy in support of the Second Amendment.
“Censorship by proxy is still censorship,” said Casey Mattox, Vice President for Legal and Judicial Strategy at Americans for Prosperity. “These cases both involve unelected government bureaucrats developing elaborate schemes to do what the Constitution plainly forbids, censoring peoples’ speech. Government should not police people’s speech. Full stop.”
AFPF argues to the court, “Bureaucrats do not sit in parens patriae over the American people’s thought processes and [the] Court has long acknowledged that the government may not censor speech simply to protect listeners from messages it does not want them to hear.”
Facts of The Cases
To some extent it was inevitable, as federal and state agencies have grown in both size and power, ambitious bureaucrats—whether for ideology or career advancement—have sought new ways to impose their viewpoints on citizens. The sheer volume of government players means that even if the risk of constitutional violation is small for each official (an optimistic outlook), the law of large numbers dictates that even a small chance per person will become an inevitability when multiplied by enough players.
Such was the case in Murthy v Missouri, in which the States of Missouri and Louisiana and four individuals sued a multitude of officials for using government power to censor them on social media by badgering media platforms to conform users’ speech to the government’s viewpoint on an array of topics, including Covid-19, vaccines, and elections. The agency officials identified targeted speakers by name, with censorship requests from removing individual posts to demanding regularly censorship of disfavored speakers or entire topics.
Encouragement ranged from garden-variety nagging, “I want an answer on what happened here and I want it today;” to threatened regulatory action such as facing a “robust anti-trust program,” if the platform didn’t comply. Had any such attempt been made officially, via executive order or by law enacted by Congress, the constitutional encroachment would have been clear. But the casual nature of the approach, and the use of intermediaries to take the public-facing action, obscured the constitutional violation—which occurred when the “ask” was made, regardless of how often the platforms complied.
Likewise, in Vullo, the constitutional violation took place when the Superintendent sought to impose her desired viewpoint on the public by asking financial companies take action against their client NRA. That request—not the extent to which those entities cooperated—is the relevant constitutional issue.
These cases, of course, represent only two instances that have successfully made it to the Supreme Court. More recently, White House requests to Amazon to censor books related to Covid-19 vaccines have made the news—not to mention the ill-fated and non-ironically-named Disinformation Governance Board. And previous cases of government censorship that failed to plead a viable legal theory have highlighted the breadth of censorship activity in other venues. Examples of the risk of an ever-expanding censorship by bureaucrats convinced of the rightness of their own opinions—and thus the danger of any contrary viewpoints—expands as the scope of government expands and must be confined to constitutional limits.
AFPF, in both cases, asked the Court to reaffirm its previous holding in Bantam Books v. Sullivan, that First Amendment speech protection cannot be evaded by using a private party intermediary to launder government censorship regardless of how casual or broad-ranging the requests may be.
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