Supreme Court suspends ruling blocking Biden administration’s contacts with tech platforms

The Supreme Court on Friday allowed Biden administration officials to continue engaging with social media platforms to combat misinformation, suspending a sweeping federal appeals court ruling that had sharply limited such interactions.

The justices also agreed to hear the government’s appeal in the case, setting the stage for a major test of the First Amendment’s role in the Internet age – a test that will require the court to consider when the government’s efforts to limit the The spread of misinformation is increasing to censor constitutionally protected expression.

Three justices dissented from the court’s decision to lift restrictions on administrative officers as the case moves forward. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is deeply troubling,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.

Justice Alito criticized the majority for acting “without a full review of the record and without any explanation” and allowing the administration to continue its interactions until the court makes a final decision, “an event that may not occur until late spring next year.” becomes.” .”

He added: “I fear that what the court has done at this point in our country’s history will be seen by some as a green light for the government to use heavy-handed tactics to distort the representation of views across the medium .” that increasingly dominates the distribution of news. This is extremely unfortunate.”

In urging the Supreme Court to act, Attorney General Elizabeth B. Prelogar said the government was entitled to express its views and try to persuade others to act.

“A central dimension of the president’s power is to use the bully pulpit of the office to persuade Americans – and American companies – to act in ways that the president believes serve the public interest,” wrote she.

In response, the attorneys general of Missouri and Louisiana, both Republicans, as well as people who said their speech was censored, wrote that the government had crossed a constitutional line.

“The bullying pulpit,” they wrote, “is not a pulpit for bullying.”

The U.S. Court of Appeals for the Fifth Circuit ruled last month that officials at the White House, the Surgeon General’s Office, the Centers for Disease Control and Prevention and the FBI most likely violated the First Amendment when they tried to persuade companies to fill jobs swipe on the coronavirus pandemic, election fraud allegations and Hunter Biden’s laptop.

In an unsigned statement, the panel said officials overly involved themselves with the platforms or used threats to get them to act. The panel issued an injunction that bars many officials from forcing or significantly encouraging social media companies to remove content protected by the First Amendment.

Ms. Prelogar wrote that the panel made a fundamental error because the platforms were private entities that ultimately made independent decisions about what to delete.

“It is undisputed that the content moderation decisions at issue in this case were made by private social media companies such as Facebook and YouTube,” she wrote.

The plaintiffs responded that the companies had succumbed to protracted and unlawful pressure. They did not dispute that the platforms were entitled to make independent decisions about what should be displayed on their websites. But they said the conduct of government officials who pressured them to remove alleged misinformation amounted to censorship in violation of the First Amendment.

“The administration’s incessant demands on the platforms,” they wrote, “were carried out against a backdrop of constant threats of adverse legal consequences from the White House, senior federal officials, members of Congress, and key congressional staff — over a period of at least five years Years.”

The case is one of several raising questions about the intersection between free speech and technology on the court’s agenda. The court recently agreed to hear appeals over whether the Constitution allows Florida and Texas to prevent major social media companies from removing posts based on their expressed views. And the court will hear arguments this month about whether elected officials violated the First Amendment when they blocked people from their social media accounts.

The new case involved a preliminary injunction originally issued by Judge Terry A. Doughty of the Federal District Court for the Western District of Louisiana. Judge Doughty, who was appointed by President Donald J. Trump, said the lawsuit describes what may be “the most massive attack on free speech in the history of the United States.”

He issued a comprehensive ten-part injunction. The appeals court significantly narrowed it, removing some officials, striking nine of its provisions and amending the remaining provision.

Judge Doughty had prohibited officials from “in any way threatening, pressuring, or coercing social media companies to remove, delete, suppress, or reduce published content of posts containing protected free speech.”

The appeals court wrote that “these terms could also capture otherwise legal statements.” The panel’s revised injunction states that officials “may not take any formal or informal action, directly or indirectly, to compel or significantly encourage social media companies to post posted social media content that contains protected content.” , to remove, delete, suppress or reduce, including by changing their algorithms.” Speech.”

Summarizing its conclusion, the panel wrote: “Ultimately, we find that the district court did not err in finding that several officials – namely the White House, the Surgeon General, the CDC, and the FBI – used social media platforms likely forced or significantly encouraged moderation.” Content that translates those decisions into actions. In doing so, the officers likely violated the First Amendment.”

In a later decision, the panel added the Cybersecurity and Infrastructure Security Agency and six of its officials and employees.

Two members of the panel, Judges Edith B. Clement and Jennifer W. Elrod, were appointed by President George W. Bush. The third, Judge Don R. Willett, was appointed by Mr. Trump.

In their briefs to the Supreme Court, both sides agreed that the case was significant, although for different reasons.

“The impact of the Fifth Circuit’s holdings is frightening,” Ms. Prelogar wrote. “The Court has devalued the ability of the President’s closest aides to use the bully pulpit to raise matters of public interest, the FBI’s ability to respond to threats to national security, and the CDC’s ability to share public health information. “Imposed unprecedented limits.” Request of the platforms.”

The plaintiffs responded that the administration’s actions caused serious harm. “When the government suppresses or restricts the speech of a single American — let alone when it does so to millions — it impoverishes the national conversation,” they wrote.