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ADF to 5th Circuit: Stop government from censoring speech through Big Tech

Friend-of-the-court brief asks federal appeals court to protect First Amendment rights
Why Some Tech Companies Are Silencing Conservative Viewpoints

NEW ORLEANS – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Monday with the U.S. Court of Appeals for the 5th Circuit in State of Missouri and State of Louisiana v. Biden, urging the court to hold the Biden administration accountable for using major social media corporations to censor views with which the administration disagrees.

In July, a federal district court ruled that the administration must cease pressuring social media companies to suppress speech that the First Amendment protects. “If the allegations by plaintiffs are true,” the court wrote, “the present case arguably involves the most massive attack against free speech in United States’ history.” The administration appealed this ruling to the 5th Circuit.

“The right to free speech is one of our most treasured freedoms—and one of the most abused by this administration,” said ADF Senior Counsel Travis Barham. “Rather than respecting and defending the First Amendment, government officials are unconstitutionally skirting it by pressuring tech giants to restrict opposing viewpoints. Americans don’t look to the White House or Silicon Valley to determine what is true, what is right, or what we can say. That’s not the role of government, and it certainly isn’t the role of Big Tech. We are urging the 5th Circuit to uphold the lower court ruling and protect freedom of speech.”

The brief notes multiple examples of Big Tech censorship that would violate the First Amendment if the same actions were executed by government officials, showing that overly vague censorship policies practiced by social media platforms set the stage for unlawful censorship. ADF attorneys explain in the brief how the Biden administration has publicly encouraged, condoned, and even called for more censorship of opposing viewpoints.

White House officials have admitted to flagging and reporting posts as “misinformation” on Facebook, YouTube, and other platforms, the brief further highlights. It also shows that the U.S. Department of State sent hundreds of thousands of dollars to a non-profit that funded the so-called “Global Disinformation Index,” and that the FBI worked with Twitter to target conservative thought leaders.

As the ADF brief argues, government officials cannot bypass the First Amendment by pressuring private companies to censor in ways the government cannot.

ADF attorneys previously filed a friend-of-the-court brief in the case at the district court in April, noting that the Viewpoint Diversity Score Business Index showed that, of 50 Big Tech, financial services, software, and banking companies, none confirmed that they publicly disclose requests made by governments or non-governmental organizations to restrict content or access to services.

“The government can’t pick and choose what viewpoints are allowed, either directly or by asking Big Tech to do its dirty work,” said ADF Legal Counsel Michael Ross. “Government officials act as if they can determine how Americans think by asking tech corporations to filter beliefs, and that is blatantly illegal. The courts need to put a stop to this unconstitutional censorship by holding the administration responsible and reaffirming free speech for all, not some.”

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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Travis Barham
Travis Barham
Senior Counsel
Travis C. Barham serves as senior counsel for Alliance Defending Freedom, where he plays a key role with the ADF Center for Academic Freedom.
Michael Ross
Michael Ross
Legal Counsel
Michael Ross serves as legal counsel for the Center for Academic Freedom with Alliance Defending Freedom