The Department of Justice on Sept. 14 requested that the U.S. Supreme Court stay an appeals court injunction that limits the federal government’s communications with social media firms.
“This application concerns an unprecedented injunction installing the United States District Court for the Western District of Louisiana as the superintendent of the Executive Branch’s communications with and about social-media platforms—including senior White House officials’ speech addressing some of the most salient public issues of the day,” U.S. Solicitor General Elizabeth Prelogar wrote in a filing.
Last week, the Louisiana-based 5th U.S. Circuit Court of Appeals partly upheld an earlier lower court ruling that had concluded that U.S. officials pressured Facebook, Twitter, YouTube, and other firms into suppressing posts about the COVID-19 pandemic, vaccines, and fraud during the 2020 election. It came after attorneys general in Louisiana and Missouri filed a lawsuit against the Biden administration in 2022, accusing federal agencies of trying to censor Americans’ speech.
The 5th Circuit’s injunction on Sept. 8 applied to the White House, the surgeon general’s office, the U.S. Centers for Disease Control and Prevention (CDC), and the FBI, saying they couldn’t “coerce or significantly encourage” the companies to remove content. The National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Security Agency, and the State Department weren’t subject to the appeals court’s ruling.
“Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions. Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government’s message as alluding to some form of punishment,” a 5th Circuit panel of judges wrote.
Ms. Prelogar wrote for the DOJ, “If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public.”
The DOJ argued that the lower court has “imposed unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public health information at platforms’ request,” according to the court papers.
DOJ lawyers wrote that, for example, the FBI “routinely shares information with platforms about accounts that appear to be used by covert foreign malign actors to influence the American public or by foreign terrorist organizations to recruit supporters.”
However, the 5th Circuit found that the lower court’s ruling against the Biden administration “did not err in determining that several officials ... likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions,” noting that officials “likely violated the First Amendment.” However, it did find that the lower court’s injunction was ”vague and broader than necessary.”
It came months after U.S. District Judge Terry Doughty of Louisiana granted an injunction in favor of Missouri and Louisiana, finding that there was “substantial evidence” of a censorship campaign on behalf of the federal government.
“[The] evidence produced thus far depicts an almost dystopian scenario [that] during the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’” the judge wrote.
Earlier this week, the DOJ also filed a motion with the Louisiana-based 5th Circuit Court in a bid to seek clarity on the court’s ruling. The court placed its ruling on pause until Sept. 18 to give the Biden administration time to file with the Supreme Court.
The Sept. 14 request indicates that the agency will likely file an appeal with the Supreme Court, setting up a wide-ranging legal battle over online and social media-based speech.
Republicans and skeptics of the government’s response to COVID-19 and mandates have been critical of President Joe Biden and his administration over how it handled COVID-19-related content online, claiming that the government is working to silence viewpoints that differ from its own. In the lawsuit filed last year, the two attorneys general also alleged that content related to the story about Hunter Biden’s laptop published by the New York Post before the 2020 election was also blocked by multiple social media outlets.
