The Supreme Court just blocked what the Biden administration called “an unprecedented injunction” that would have significantly restricted government communications with social media companies about content it deems misinformation.
Justice Samuel Alito dissented, joined by fellow Republican-appointed Justices Clarence Thomas and Neil Gorsuch.
The court also agreed to take up the appeal for what promises to be a consequential decision that could come by late June this term. The 6-3 split in Friday’s order doesn’t necessarily mean that’s how the ultimate decision will turn out. But as Alito’s dissent and the lower court rulings in the case show, the politics of the ongoing debate over social media platforms are reflected to some degree on the bench as well.
The case was brought by GOP attorneys general from Missouri and Louisiana, along with individual social media users. They alleged that federal officials attempting to suppress disinformation coerced social media platforms into censoring content in violation of the First Amendment.
U.S. District Judge Terry Doughty granted that sweeping injunction in July. The Donald Trump appointee sitting in Louisiana said that, if the plaintiffs’ allegations are true, their case “arguably involves the most massive attack against free speech in United States’ history.”
The 5th U.S. Circuit Court of Appeals narrowed the injunction on Sept. 8, but approved it to the extent that government employees and agents:
shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
The ruling applied to the White House, the surgeon general’s office, the FBI and the Centers for Disease Control and Prevention. The Biden administration appealed to the justices to stop the injunction from taking effect, and Alito temporarily blocked it while the justices decided what to do.
But before they even decided, the states pushed the 5th Circuit to broaden the injunction. The GOP-appointed panel did so on Oct. 3, adding the Cybersecurity and Infrastructure Security Agency to the list of impacted agencies, and pausing (or “staying”) the injunction from taking effect for 10 more days. Alito extended the stay through Friday at 5 p.m. ET.
In its application to the justices on Sept. 14, the federal government warned of the “startling” implications of the injunction imposing “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.” The Republican states, for their part, said, among other things, that the government unlawfully pressured companies to “censor disfavored viewpoints.” Echoing that view, Alito on Friday called it “most unfortunate” that: At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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