The U.S. Supreme Court on Friday kept intact a temporary injunction on restrictions that were imposed by lower courts on the Biden administration’s ability to communicate with social media companies over removing content that it deems to be misinformation.
Justice Samuel Alito temporarily placed on hold a preliminary injunction constraining how federal officials and the White House communicate with platforms such as Facebook, Instagram, YouTube, or X, formerly Twitter. Attorneys general in Missouri and Louisiana last year filed a lawsuit against the administration and other federal officials, accusing them of censoring conservatives on topics such as the 2020 election or COVID-19 vaccines.
The order Friday will keep the matter on hold until Oct. 20, giving the Supreme Court more time to consider a request from the Biden administration to block the lower court ruling earlier this year that found officials likely coerced the companies into censoring certain posts, in violation of the U.S. Constitution’s First Amendment free speech protections.
Justice Alito first placed a temporary hold on the injunction pending the justices’ review on Sept. 14. That pause lapsed as a lower appeals court reheard the matter. Alito is the justice designated by the court to act on certain matters arising from a group of states including Louisiana, where the lawsuit was first filed.
In July, Louisiana-based U.S. District Judge Terry Doughty blocked the Biden administration from communicating with the tech firms, saying that the plaintiffs were likely to succeed in their lawsuit and said the federal government suppressed views on COVID-19 masks, lockdowns, and vaccines, as well as fraud claims around the 2020 election.
At the time, he 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.’”
Later, the U.S. Fifth Circuit Court of Appeals shrunk the lower court’s injunction, but it affirmed that the White House, Surgeon General’s office, U.S. Centers for Disease Control and Prevention, FBI, and the Cybersecurity and Infrastructure Security Agency (CISA) cannot communicate with the tech firms relating to content moderation.
“In doing so, the officials likely violated the First Amendment,” the appeals judges wrote at the time.
“The platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information,” the appeals court order added. “Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment.”
House Judiciary Chairman Jim Jordan ( R-Ohio) was among the group of House Republicans who made a court filing to the Fifth Circuit to uphold the lower court’s preliminary injunction, saying that federal authorities tried to suppress speech that violates the First Amendment.
“On issue after issue, the Biden Administration has distorted the free marketplace of ideas promised by the First Amendment, bringing the weight of federal authority to bear on any speech it dislikes,” the GOP members of Congress wrote in their filing.
Response
An emergency filing from the Department of Justice (DOJ) last month asked the high court to allow officials to respond to online posts that they allege pose a danger to public health. The DOJ had argued that federal officials have to be able to respond to those posts for national security reasons as well.“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.”
The order handed down by Judge Doughty, she argued, was “vastly overbroad” and “covers thousands of federal officers and employees, and it applies to communications with and about all social media platforms.”
The case represents one of numerous legal battles underway pitting free speech against content moderation on the internet, with many Democrats and liberals issuing warnings of platforms’ posts about public health, fraud, and vaccines. Republicans have accused those platforms of censoring their viewpoints.
In their lawsuit filed in 2022, the two Republican attorneys general for Missouri and Louisiana wrote that content related to Hunter Biden’s laptop published initially by the New York Post two weeks before the 2020 election was also blocked by Twitter, Facebook, and other social media platforms.
They also alleged that the Biden administration pressured social media platforms under the threat of a possible antitrust lawsuit or allegedly threatened to change federal laws that shield those firms from lawsuits relating to users’ posts.
