Supreme Court Urged to Stay Injunction Against Government Social Media Censorship

Silhouettes of mobile users are seen next to a screen projection of the Instagram logo in this picture illustration taken on March 28, 2018. Dado Ruvic/Reuters

A constitutional rights organization and Ohio Attorney General Dave Yost have urged the Supreme Court to keep in place an injunction preventing government-pressured social media censorship.

The New Civil Liberties Alliance (NCLA), in an amicus brief filed (pdf) on Sept. 20, asked the high court to keep the injunction in place to protect Americans’ First Amendment rights while litigation regarding the case—Missouri v. Biden—remains ongoing.

The injunction relates to a lawsuit filed by former Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry in 2022 against the Biden administration centered on possible government overreach and free speech.

The attorneys general, in their lawsuit, alleged that the federal government “coerced and significantly encouraged” social media platforms such as Facebook, Twitter, YouTube, and Google to remove alleged misinformation, including by “threats of adverse government action” such as antitrust enforcement and legal reforms.

This amounted to a violation of free speech and censorship, they argued.

Earlier this month, the Biden administration urged the Supreme Court to lift the injunction in the case.

In response, the NCLA, in its amicus brief, noted the “overwhelming evidence” of the government’s alleged behavior, including nearly 20,000 pages of federal communications with social media platforms and six full-length depositions of senior federal officials with “direct knowledge of federal censorship activities.”

The nonprofit also argued that the injunction wasn’t “overboard,” contradicting the federal government’s argument complaining of its wide scope.

“The Government argues that the injunction interferes with the government’s ability to speak,” the NCLA wrote in the court filing. “The Government has a wide latitude to speak on matters of public concern, but it cannot stifle the protected speech of ordinary Americans.”

The logo of X (formerly Twitter) on a smartphone screen in Los Angeles on July 31, 2023. Chris Delmas/AFP via Getty Images

Ordinary Americans’ Speech Being ‘Stifled’

Litigation in the lawsuit has remained ongoing despite the U.S. Court of Appeals for the 5th Circuit ruling (pdf) earlier this month that the White House, the FBI, the Centers for Disease Control and Prevention (CDC), and the U.S. Surgeon General’s office did, in fact, violate the First Amendment by pressuring social media companies to suppress free speech.

That pressure likely “had the intended result of suppressing millions of protected free speech postings by American citizens,” the appeals court found.

As a result, judges with the appeals court also partly upheld an injunction issued earlier by Judge Terry Doughty, a Trump appointee.

Judge Doughty found that the federal government had urged social media companies to suppress free speech owing to concerns over potential “misinformation” about the COVID-19 pandemic, including the safety and efficacy of vaccines, mask mandates, and other key issues such as elections.

He ordered government officials from key departments to cease “threatening, pressuring, or coercing” social media companies to “remove, delete, suppress, or reduce posted content of postings containing protected free speech.”

The Biden administration ultimately called on the Supreme Court to pause the injunction, arguing that it would interfere with how the White House, FBI, and health officials from the CDC and elsewhere address matters of public concern and security and “impose grave and irreparable harms on the government and the public.”

“Of course, the government cannot punish people for expressing different views,” attorneys for the federal government wrote in court filings (pdf). “Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion.”

Supreme Court Justice Samuel Alito agreed (pdf) to extend a pause on the ruling until Sept. 22 while the Biden administration appeals the injunction.

The NCLA, in its court filing on Sept. 20, called on the Supreme Court to allow the 5th Circuit’s order enjoining the government’s censorship conduct to proceed “without delay” or risk continued violation of Americans’ First Amendment rights.

U.S. President Joe Biden delivers a primetime speech at Independence National Historical Park in Philadelphia on Sept. 1, 2022. Alex Wong/Getty Images

‘No Right to Police the Truth’

Officials further argued that the government has so far “failed to present a single convincing argument for staying the injunction any further.”

“Apparently the Biden Administration hasn’t gotten tired of losing. The government’s stay application is nothing more than a shameless attempt to convince the nation’s highest court to allow it to continue to violate Americans’ First Amendment rights,” Jenin Younes, litigation counsel for the NCLA, said in a statement.

“We’re confident the Court will recognize this and uphold the lower court’s injunction. We look forward to seeing our clients’ rights vindicated yet again.”

Mark Chenoweth, NCLA president and general counsel, stressed that the Biden administration has “no right to police the truth or keep narratives with which it disagrees from appearing on social media.”

“The fact that the White House, CDC, FBI, and Surgeon General’s office want to keep censoring disfavored viewpoints on social media platforms is abhorrent,” Mr. Chenoweth said.

Mr. Yost also joined Missouri and Louisiana in their lawsuit against the Biden administration on Sept. 20, filing an amicus brief with the Supreme Court urging it to keep the block in place, preventing federal officials from pressuring social media platforms to delete various user content.

“The federal government doesn’t get to play referee on the field of public discourse,” he said in a statement. “If you let them decide what speech is OK, one day yours might not be.”

Separately, the NCLA had filed a lawsuit in federal court to block the Biden administration’s new student loan income-driven repayment plan from going ahead, arguing that the government has no lawful authority to do so.