Washington — Supreme Court on Friday agreed to temporarily suspend a lower court order that limited Biden administration officials’ contact with social media companies as part of a government effort to address the spread of misinformation online.
The justices also agreed to take up the case and decide whether the Biden administration worked illegally to suppress conservative speech on platforms such as Facebook, YouTube and X. The court will hear arguments this winter, setting the stage for a landmark ruling on the freedom of the word and social media.
A federal district judge in Louisiana issued an injunction over the summer thatat four federal agencies and the White House from certain contacts with social media companies. The U.S. Court of Appeals for the 5th Circuit reversed the injunction earlier this month.
Friday’s Supreme Court order halts the injunction while justices consider the matter. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would keep the order in place while the court hears the case.
“At this point in our country’s history, I fear that what the Court has done will be seen by some as giving the government a green light to use cruel tactics to distort the representation of views in a media that increasingly dominates news coverage,” Alito wrote in a 5-page opinion dissenting from the stay. “That’s the most unfortunate thing.”
A battle for free speech and social media
The case, known as Murty v. Missouri, stems from a lawsuit filed by five social media users and the Republican attorneys general of Missouri and Louisiana. They alleged that multiple federal agencies and officials had forced social media companies to suppress speech on their platforms in violation of the First Amendment.
The contenders highlighted several topics they claimed were censored on social media, including a story about Hunter Biden’s laptop ahead of the 2020 election; the origins of the COVID-19 pandemic; the effectiveness of measures to limit the spread of COVID-19; and the integrity of the 2020 elections.
The Biden administrationit seeks to combat the spread of misinformation online by flagging potentially harmful content to social media companies, and noted that the Trump administration has taken many of the same actions at issue in the lawsuit.
U.S. District Judge Terry Doughty issued a preliminary injunction on July 4 that blocks a number of federal officials, as well as certain agencies, from engaging in a range of communications with social media companies about content “containing protected free speech posted” on their platforms. The order contained several exceptions allowing the government to notify social media companies about content involving criminal activity, threats to national security or foreign attempts to influence elections, among other areas.
The government appealed Doughty’s order. The 5th Circuit found that officials from the White House and the Surgeon General’s office engaged in coercion and “substantial encouragement” when they communicated with social media companies about specific content.
The Court of Appealof the lower court’s 10-part order and who it covers, finding that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI likely violated the First Amendment. In its unsigned opinion, the 5th Circuit blocked them from taking actions, “formal or informal, directly or indirectly, to compel or substantially encourage social media companies to remove, delete, suppress or reduce, including by changing their algorithms, posted in social networks – media content containing protected freedom of speech.”
The government’s argument
In addition to seeking emergency relief from the Supreme Court, the Justice Department said it intended to ask the justices to take over the case, which they agreed to do on Friday.
“The court imposed unprecedented restrictions on the ability of the president’s closest aides to use the pulpit to address issues of public interest, on the FBI’s ability to address threats to the nation’s security, and on the CDC’s ability to pass on information about public health platforms “request,” lead attorney Elizabeth Prelogar told the Supreme Court.
She criticized the district court’s order, arguing that it was “unprecedented” and violated the separation of powers. She said the court has established itself as a “watchdog of the executive branch’s communications with and about social media platforms — including speech by senior White House officials touching on some of the most important public issues of the day.”
“Under the order, the chief medical officer, the White House press secretary and many other senior presidential aides risk being held in contempt if their public statements on policy issues cross the ill-defined lines drawn by the Fifth Circuit,” Prelogar said. “CDC employees are at the same risk if they answer the platforms’ public health questions accurately. And FBI agents risk prosecution if they flag content posted by terrorists or disinformation spread by covert malicious foreign actors.”
What states say
In response to the Justice Department’s request, the attorneys general of Louisiana and Missouri urged the Supreme Court to allow the ban to go into effect, which the 5th Circuit has temporarily stayed until Oct. 13.
“As relevant here, the district court’s findings and the evidence establish an extensive campaign by federal officials at the White House, the Surgeon General’s Office, the CDC and the FBI to silence adverse viewpoints on social media,” they wrote in a filing. “This campaign began in 2018, dramatically accelerated in 2021, and continues to this day.”
The plaintiffs in the case, Republicans argue, have a First Amendment right “to deal with platforms on a level playing field free from the stranglehold of federal coercion.”
“Here, federal censorship has fundamentally altered online discourse — rendering entire viewpoints on matters of great public concern virtually unspeakable on social media,” the attorneys general wrote.
The dispute, involving the government’s efforts to crack down on misinformation spread on social media, is one of several before the Supreme Court, which sits at the intersection of the First Amendment and online speech.
The judges willin October in two cases involving public officials’ actions on social media, including whether elected officials violated the First Amendment when they blocked users from interacting with their content.
The court will toochallenging laws in Texas and Florida that impose new rules on social media companies and their content moderation policies, which were passed in response to claims that conservative users were being silenced by the platforms.