CINCINNATI, Ohio—Today, NetChoice, joined by the Cato Institute and Pelican Institute, filed an amicus brief to the U.S. Court of Appeals for the Sixth Circuit in Changizi, et al. v. U.S. Department of Health and Human Services, et al. In our brief, which is in support of neither party, we explain that the First Amendment prohibits the government from censoring, compelling or otherwise abridging private speech.
Government actors should not be able to evade the First Amendment by informally bullying private social media services. For that reason, we ask the Sixth Circuit to clarify that users may pursue First Amendment “jawboning” claims against the government without declaring Twitter itself a state actor. Our approach would resolve legitimate concerns about government coercion without chilling the First Amendment rights of third-party social media services to moderate as they see fit.
In Changizi, the appellants argue that the Department of Health and Human Services (HHS) and the Surgeon General violated the First Amendment by indirectly coercing Twitter to remove their accounts because they expressed messages the government disliked.
Government jawboning is when government officials bully online speech intermediaries like Twitter into making certain content moderation decisions by threatening them with the possibility of regulatory changes, legislation and onerous investigations. Jawboning against users’ online speech threatens the users’ right to content moderation decisions made free of government coercion but could also potentially undermine the social media services’ First Amendment right to choose the content they host.
The Sixth Circuit should ensure the First Amendment rights of both users and social media services are fully considered and protected.
“The government’s effort to police online speech should alarm us all. We encourage the Sixth Circuit to ensure the First Amendment rights of both users and digital services are fully considered and protected in this case,” said NetChoice Counsel Chris Marchese.
Marchese continued: “Just as the government cannot force newspapers to cover issues a certain way or to cover them at all, it cannot force websites or digital services to moderate content a certain way. To protect all online speech—of both users and providers—courts should allow victims of government jawboning to sue the government directly.”