Supreme Court Halts Order Blocking Biden Admin’s Contact With Social Media Firms

Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justices Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Olivier Douliery/AFP via Getty Images

Supreme Court Justice Samuel Alito on Sept. 14 temporarily placed on hold a lower court ruling that restricted federal agencies from contacting social media firms with requests to remove content while the justices consider how to handle the case.

His order froze a recent appeals court decision that found that federal officials likely violated First Amendment protections by coercing some platforms into deleting certain posts and content. A lawsuit was filed by Missouri and Louisiana last year against the Biden administration, accusing federal officials of trying to censor people with certain viewpoints.

A district judge in July blocked a multitude of federal agencies from communicating with social media firms, while the 5th U.S. Circuit Court of Appeals on Sept. 8 partially upheld the ruling. The appeals court allowed certain agencies to still contact those companies and argued that the lower court’s order was too broad.

Justice Alito’s order pauses the lower court’s decision until Sept. 22. The justice, who was nominated by President George W. Bush, is the justice designated by the court to act on matters coming from several states, including Louisiana.

Any response to the application has to be filed with the Supreme Court by 4 p.m. on Sept. 20, Justice Alito ordered.

The court’s action on Sept. 14 came just a few hours after the Biden administration had asked the court to put the lower court’s order on hold while it prepares a formal appeal.

The emergency filing from the Department of Justice (DOJ) asked the high court (pdf) to allow officials at the White House, Centers for Disease Control and Prevention (CDC), and FBI, as well as others, to respond to online posts that they claim pose a danger to public health. The DOJ had argued that federal officials need to be able to respond for national security purposes, too.

“Under the injunction, the Surgeon General, the White House Press Secretary, and many other senior presidential aides risk contempt if their public statements on matters of policy cross the ill-defined lines drawn by the Fifth Circuit,” Solicitor General Elizabeth Prelogar wrote for the DOJ. “CDC officials run the same risk if they accurately answer platforms’ questions about public health. And FBI agents risk being hauled into court if they flag content posted by terrorists or disinformation disseminated by covert malign foreign actors.”

Ms. Prelogar also argued that the July injunction is “vastly overbroad” and said it “covers thousands of federal officers and employees, and it applies to communications with and about all social media platforms.”

Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. Erin Schaff/Pool via Reuters

“If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public,” she claimed, adding that the DOJ will ask the Supreme Court to review the case in October.

In July, Louisiana-based U.S. District Judge Terry Doughty concluded that Facebook, YouTube, and Twitter suppressed content related to COVID-19 and claims of fraud during the 2020 election. His injunction allowed federal officials, however, to correspond with social media firms regarding criminal activity, national security threats, and similar matters.

In his strongly worded ruling, the judge warned 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 5th Circuit’s panel of judges, in its Sept. 8 order, wrote that the lower court “did not err in determining that several officials ... likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions.”

“In doing so, the officials likely violated the First Amendment,” the judges concluded.

Other Details

On Sept. 14, Missouri Attorney General Andrew Bailey plans to oppose the Biden administration’s Supreme Court appeal, a spokesperson told news outlets.

“We are rooting out this censorship enterprise and will hold any wrongdoers accountable,” Mr. Bailey said in a statement.

Over the years, Republicans and other 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 Republican attorneys general for Missouri and Louisiana also stated 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.

They also accused Biden administration officials of pressuring social media websites to delete content under the threat of a potential antitrust lawsuit or proposed changes to federal laws that shield them from lawsuits over their users’ content.

Multiple installments of the “Twitter Files,” released by multiple journalists starting in late 2022 after Elon Musk’s takeover of the company, revealed communications between various federal agencies—such as the FBI—and former top Twitter executives. Twitter was rebranded as X several weeks ago.

Reuters contributed to this report.