News Release
February 7, 2024
ALF Urges Supreme Court To Let Scientific Debate Flourish

Question Presented:

Whether the First Amendment prohibits Executive Branch officials from coercing social media into censoring or suppressing disfavored viewpoints about the COVID-19 pandemic and other controversial subjects.
"The right to criticize or question the scientific bases for the federal government’s public health policies and messaging—especially during an unprecedented public health emergency that profoundly affects the social, educational, and economic fabric, and physical and psychological well-being, of the entire nation—not only is constitutionally sacrosanct, but also vital to advancing sound science."
Atlantic Legal Foundation
The Supreme Court has agreed to hear Murthy v. Missouri, No. 23-411, a First Amendment freedom of speech case brought by the States of Missouri and Louisiana and several individual social media users, including public health experts. They seek to enjoin White House, Surgeon General, Centers for Disease Control (CDC), Cybersecurity and Infrastructure Security Agency (CISA), and other Executive Branch officials from coercing various social media platforms into censoring or suppressing content about the COVID-19 pandemic (and other controversial subjects) that conflict with or undermine the Administration's policies and/or messaging.

ALF, which long has been one the nation's foremost advocates for sound science in all three branches of the federal government, has filed an amicus brief in support of the Plaintiffs-Respondents.

Case Background

In July 2023, based on extensive evidence concerning Executive Branch officials' coercive interactions with social media platforms, a Louisiana federal district court issued a sweeping preliminary injunction against the government defendants. The federal district court found, for example, that "[d]iffering views about whether COVID-19 vaccines worked, whether taking the COVID-19 vaccine was safe, whether mask mandates were necessary, whether schools and businesses should have been closed, whether vaccine mandates were necessary, and a host of other topics were suppressed.”

On appeal, the Fifth Circuit affirmed, finding no clear error of fact regarding the district court's conclusion that "the officials, via both private and public channels, asked the [social media] platforms to remove content, pressed them to change their moderation policies, and threatened them—directly and indirectly—with legal consequences if they did not comply. And, it worked—that 'unrelenting pressure' forced the platforms to act and take down users’ content."

The court of appeals reiterated many of the district court's factual findings. It modified, however, the still-expansive preliminary injunction's reach so that it applies to "the White House, the Surgeon General, the CDC, the FBI, and CISA." As modified, the preliminary injunction states as follows:
"Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or
reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes."

The Supreme Court granted the government's application to stay the preliminary injunction pending appeal, and in so doing, treated the stay application as a petition for writ of certiorari, which it granted.

ALF's Amicus Brief

ALF's amicus brief argues that governmental efforts to silence or suppress, rather than solicit and evaluate, dissenting or differing scientific points of view—including on social media platforms—is not in the public interest. Instead, to protect the public, the government not only should rely on its own medical and scientific experts, but also encourage and evaluate other credible points of view, even those that criticize or question Executive Branch public health policies and messaging. The government should allow scientific debate to flourish, especially in connection with urgent matters of public health, such as during the COVID-19 pandemic.

Quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993), ALF's brief explains that "open debate is an essential part [of] scientific analyses.” Daubert is a landmark case which cites and quotes the amicus brief filed by ALF on behalf of several renowned scientists regarding the meaning of scientific knowledge. “Scientific conclusions are subject to perpetual revision. . . . The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance.” Id. at 597.

Consistent with Daubert and the scientific method, ALF's amicus brief in Murthy v. Missouri explains that

"[c]ensoring dissenting viewpoints and chilling public debate—including on Twitter and other social media—about the validity, accuracy, and/or adequacy of the scientific evidence supporting the federal government’s COVID-19 mitigation policies and messaging is fundamentally incompatible with, and detrimental to, the manner in which scientific knowledge develops. . . . The unavailability of sound scientific research supporting public health policies and messaging may be unavoidable at the outset of an unanticipated public health emergency such as the COVID-19 pandemic. But such a lack of adequate scientific research is all the more reason why the government should embrace, and certainly not suppress, public criticism or questions that illuminate the need for ongoing and additional scientific investigation."

A Supreme Court hearing in the case is set for March 18.
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 46 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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