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U.S. Supreme Court Justice Samuel Alito on Thursday paused an order that would have restricted the Biden administration from communicating with social media companies after two lower courts found key government officials likely violated the First Amendment by pressuring the companies to censor information about COVID-19.
Alito’s ruling places a temporary hold on a federal judge’s injunction issued July 4 in Missouri et al. v. Biden et al., and later upheld under a Sept. 8 ruling by the 5th Circuit U.S. Court of Appeals.
The injunction was set to take effect Sept. 18.
The 5th Circuit agreed with the lower court that Biden administration officials illegally suppressed free speech on social media. But a three-judge panel issued a mixed ruling that only partially upheld the July 4 injunction.
Alito’s pause, in effect until Sept. 22, followed Thursday’s emergency filing by the U.S. Department of Justice to the Supreme Court to stay the injunction while the high court considers whether to hear the case.
The plaintiffs have until Sept. 20 to respond to the government’s request.
Kim Mack Rosenberg, acting general counsel for Children’s Health Defense (CHD) told The Defender it was not surprising that Solicitor General Elizabeth Prelogar asked the Supreme Court to stay the injunction, nor that the court issued a brief administrative stay, as the 5th Circuit had also done in July.
“Counsel for President Biden and the other defendants had telegraphed before the 5th Circuit at oral arguments on Aug. 10 that the defendants likely would take the case up to the Supreme Court,” she said.
In the filing, Prelogar argued the injunction “flouts bedrock principles of Article III [regarding judicial powers], the First Amendment, and equity.”
“A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the President believes would advance the public interest,” Prelogar wrote.
But, she added, “The court imposed 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 [Centers for Disease Control and Prevention] ability to relay public-health information at platforms’ request.”
Commenting on these claims, Rosenberg said, “What is interesting to me is how tone deaf to First Amendment rights the federal government appears to be,” adding that the statement on the presidential use of the bully pulpit was particularly telling.
“This is not a case about suppressing the government’s ability to express opinions in the media,” said Rosenberg. “It is about the government actively engaging with social media to suppress First Amendment rights of those who use the social media platforms to disseminate and receive information.”
The “bully pulpit” examples cited by Prelogar in the application concerned non-speech-related actions by companies, and were “completely distinguishable” from this case, Rosenberg said.
While the government claims it is simply trying to persuade companies to take certain action with respect to speech, she said “the evidence brought forth to date in this case and elsewhere shows the government’s coercive actions in communicating with social media companies to suppress free speech and mislead Americans through censored media.”
Two courts already found the evidence the administration’s actions violated the First Amendment compelling and issued and upheld the injunction based on that evidence.
The 5th Circuit judges wrote last week that the White House and the Office of the Surgeon General had “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences” and “significantly encouraged the platforms’ decisions by commandeering their decision-making processes.”
The court limited the scope of the original preliminary injunction, which prohibited officials from many agencies from having practically any contact with the social media companies. Instead, the court narrowed the impact to the White House, the Surgeon General’s Office, the FBI and the CDC.
In the filing Thursday, Prelogar also argued, “If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public.”
Rosenberg responded:
“I would argue that if the injunction does not take effect, the public will continue to be harmed by the government exerting coercive pressure to control what we are allowed to say and see on social media.
“Free speech is a hallmark of democracy. It is astounding that this administration continues to try to disassemble and destroy this fundamental right.”
The central question in Missouri et al. v. Biden et al. is whether the Biden administration violated the First Amendment when it pressured social media companies to remove or suppress content that ran contrary to official narratives on COVID-19, vaccines and other content the government disagreed with.
Plaintiffs in the case include Jay Bhattacharya, M.D., Ph.D., and Martin Kulldorff, Ph.D., who co-authored the Great Barrington Declaration, Jim Hoft, who runs The Gateway Pundit website, Dr. Aaron Kheriaty senior scholar at the Brownstone Institute, and Jill Hines, co-director of Health Freedom Louisiana, along with the attorneys general from Missouri and Louisiana.
It is one of several lawsuits pending in federal courts alleging the White House and members of the Biden administration pressured social media platforms to suppress speech that was not aligned with establishment policies concerning COVID-19, vaccines and other policy-related issues.
These include cases against Texas and Florida for passing anti-censorship laws, the Kennedy et al. v. Biden et al. censorship lawsuit, which was consolidated with Missouri et al. v. Biden et al. in July, and Kennedy v. Google et al., alleging YouTube censored COVID-19 vaccine-related content posted by Robert F. Kennedy Jr., CHD’s chairman on leave, and in which CHD is co-plaintiff.
In 2021, CHD filed a landmark complaint in California against Facebook. Based on arguments first advanced by Yale law professor Jed Rubenfeld, who represents CHD and Kennedy in these cases, CHD argued the federal government’s involvement in Facebook’s censorship of COVID-19-related speech turned that censorship into state action violating the First Amendment. That case is still pending before the 9th Circuit and remains undecided to this day.
The 5th Circuit ruling last week upheld an almost identical claim. That the decision is now on appeal to the U.S. Supreme Court has “potentially historic” implications, Rubenfeld told The Defender.
“The government’s use of social media platforms to censor speech is the gravest threat to the First Amendment of our time,” Rubenfeld said. “The Court has the opportunity to stop this massive violation of free speech, and if it does, the effects will be profound throughout the country and the legal system.”
