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ADF: Biden admin should be held accountable for role in online censorship

Friend-of-the-court brief calls on district court to apply First Amendment
White House

MONROE, La. – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Tuesday in State of Louisiana v. Biden that urges a federal district court to hold the Biden administration responsible for coordinating with major social media corporations to censor disfavored views.

“Government should be freedom’s strongest defender, not its greatest threat,” said ADF Senior Counsel Travis Barham. “Americans don’t look to the White House or Silicon Valley to discover and express the truth. That’s not the role of government, and it certainly isn’t the role of big tech. When government actors like the Biden administration encourage and enable unelected big tech executives to do their dirty work for them, they do an end-run around the Constitution. That needs to stop, and that’s why we hope Missouri prevails in its lawsuit.”

Citing multiple instances of big tech censorship that would not withstand First Amendment scrutiny if directly undertaken by government actors, the brief calls attention to several examples where officials in the Biden administration have publicly encouraged, condoned, and even called for more of the same censorship.

For example, the brief mentions admissions from the White House in early 2021 that the administration was flagging and reporting posts on Facebook, YouTube, and other platforms. The brief also draws attention to a grant to the so-called “Global Disinformation Index,” as well as recent revelations in the “Twitter Files” as evidence that the administration is deeply involved in censoring and hamstringing speech on ideological grounds.

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

Filed in May of last year by the attorneys general of Missouri and Louisiana, the lawsuit showcases repeated and ongoing interactions with White House officials and those at Facebook and Twitter. Likewise, ADF’s friend-of-the-court brief highlights the danger of the administration’s collusion with powerful tech and banking corporations, whose leadership has shown a startling propensity to sacrifice the freedom of those within the marketplace in service of ideological conformity.

Of the 50 big tech, financial services, software, and banking companies scored by the ADF Viewpoint Diversity Score 2022 Business Index, not one confirmed that they publicly disclose requests by governments or non-governmental organizations to restrict content or access to services.

The brief also cites findings from the Business Index when it comes to the inherently problematic nature of many companies’ vague and overly broad terms-of-use policies. These policies permit employees to engage in unfettered censorship. They often employ restrictions against “hatred,” “hostility,” or even “insults”—all terms that courts have struck down because they imperil free speech. Along with big tech companies’ reliance on these vague standards to punish speech, large banks such as JPMorgan Chase and payment processors like PayPal have used similar policies to cancel accounts and payment processing from groups and individuals with whom they disagree.

“Free speech is not a privilege of those favored by the government—it’s something every American should be able to enjoy, regardless of their background or creed,” said ADF Legal Counsel Michael Ross. “No one should have to fear being deplatformed just because someone at Google disagrees with what they have to say or what they believe. And it’s illegal when the government does it. It’s time for the Biden administration to take responsibility for its role in threatening the freedom of those it has sworn to serve under the Constitution.”

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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Michael Ross
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Michael Ross serves as legal counsel for the Center for Academic Freedom with Alliance Defending Freedom
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