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In a case one commentator said could have “profound implications for almost every aspect of American life,” the U.S. Supreme Court late last week said it will review a lower court ruling that barred key Biden administration officials from communicating with social media platforms. missouri-biden-supreme-court-censor-feature.jpg
In its Oct. 20 ruling, the Supreme Court also temporarily lifted restrictions on the White House’s contact with tech firms by preventing enforcement of the lower court’s injunction, first granted July 4 by the U.S. District Court for the Western District of Louisiana Monroe Division.
The injunction applied to the White House, the surgeon general, the Centers for Disease Control and Prevention, the FBI and, as of an Oct. 3 ruling by the U.S. Court of Appeals for the 5th Circuit, the Cybersecurity and Infrastructure Security Agency, barring them from communicating with social media companies about “misinformation.”
The court ruled 4-3 in favor of granting the stay and the writ of certiorari.
The ruling pertains to a landmark First Amendment lawsuit brought in May 2022 by the attorneys general of Missouri and Louisiana, alleging Biden officials violated the First Amendment by suppressing speech on social media companies through collusion with the platforms to suppress content on topics such as COVID-19, election integrity, and the Hunter Biden laptop scandal.
The majority decision was unsigned. However, the three dissenting justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — issued a four-page dissent that offered a strong defense of First Amendment free speech rights and opposition toward government censorship of private speech.
The Supreme Court’s Oct. 20 ruling means that the stay preventing the injunction from being enforced will continue until the court hears the case and issues a ruling — which could take place any time before the Supreme Court’s current term ends in June 2024.
California-based attorney Richard Jaffe told The Defender the Supreme Court will not hear the full Missouri et al. v. Biden et al. lawsuit, but only the preliminary injunction as amended by the 5th Circuit.
He added that Kennedy et al. v. Biden et al., a lawsuit making similar First Amendment and censorship claims and which was consolidated with Missouri et al. v. Biden et. al. in July, is not part of the preliminary injunction now being examined by the Supreme Court.
Children’s Health Defense (CHD) is one of the plaintiffs in Kennedy et al. v. Biden et al.
Alito: ‘Government censorship’ of speech ‘antithetical to our democratic form of government’
The dissenting opinion, authored by Alito, argued that the government’s request for a stay pausing the injunction should not have been granted by the court, noting that the government had not demonstrated “any concrete proof” that “harm is imminent” — a threshold that is required to issue a stay against an injunction.
“Government’s attempts … do not come close to clearing this high bar,” Alito wrote, arguing that the government relied on “a series of hypothetical statements” that “a covered official might want to make in the future” and that “might be chilled.”
“But hypotheticals are just that — speculation that the Government ‘may suffer irreparable harm at some point in the future,’ not concrete proof,” he wrote.
The dissent also questioned the tactics used by the government to police online speech.
“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,” Alito wrote. “That is most unfortunate.”
“Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” he added.
Jaffe wrote the dissenting justices are “the three most robust First Amendment guardians” on the court.
Describing their dissenting opinion as “a literary appetizer,” he said it “hints at the potential narrative in their future plurality/concurring opinions,” in the event two other justices agree with them and rule for the plaintiffs.
However, Jaffe left open the possibility that the dissenting opinion may alternatively end up forming the basis of a future dissent in a final ruling by the court, “if two of the middle three [justices] join forces with the left, who will surely argue that the government’s role in shielding the public extends to coaxing or outright intimidating social media.”
‘One step closer to reestablishing’ First Amendment protections
Legal experts who spoke with The Defender explained the likely reasoning behind the Supreme Court’s ruling.
California-based attorney Greg Glaser told The Defender that granting certiorari means the Supreme Court will take the case and then give a detailed written opinion on the merits.
“The Supreme Court will explain how the First Amendment applies to situations where the government coerces or ‘significantly encourages’ social media companies to censor conservative viewpoints,” he said.
The plaintiffs in the lawsuit have argued that the Biden administration waged a “coordinated campaign” to stifle disfavored views and opinions on social media platforms, including conservative viewpoints, according to Jaffe.
According to NPR, “The case has profound implications for almost every aspect of American life,” in light of “great national security concerns about false information online” related to ongoing wars in the Middle East and Ukraine and “further concerns about misinformation” that could affect the 2024 elections.
The main issue, according to Glaser, is whether the plaintiffs are right that the Biden administration violated the First Amendment by coercing social media companies to censor conservative viewpoints, or whether the Biden administration is right that it was “advocating and defending its own policies.”
“The sad irony is both are true,” Glaser added.
In a statement provided to The Defender, Louisiana Attorney General Jeff Landry said the Supreme Court is “offering an opportunity to present this landmark case and defend the First Amendment at the highest court in the land.”
In the same statement, Louisiana Solicitor General Liz Murrill said the Supreme Court has provided the plaintiffs with “another opportunity to defend the people from this assault on our First Amendment rights” and “brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment.”
“It also grants us an opportunity to affirm once and for all that the government is not permitted to use the government-speech doctrine to muffle the expression of disfavored viewpoints,” Murrill said, adding “We hope that the Supreme Court will agree that this gross abuse of power must stop and never happen again.”
‘No surprise’ ruling preserves Supreme Court’s view of its role
CHD President Mary Holland said it’s “good news that the Supreme Court will hear Missouri v. Biden, the most important censorship case in a generation,” but added that “The bad news is that [the stay] allows the federal censors to continue unconstitutional censorship in violation of our First Amendment until the Supreme Court issues its decision, which could be late spring 2024.”
“That the court has agreed to hear Missouri v. Biden underscores the significance of this case,” said Kim Mack Rosenberg, acting general counsel for CHD.
“However, two federal courts already have found that the plaintiffs demonstrated that they are likely to succeed on the merits of their claims that the Biden administration’s coercive censorship actions violate the First Amendment,” she added.
Writing on his blog, Jaffe said that it was unsurprising that the Supreme Court ruled in the manner that it did.
“No surprise here,” he wrote. “The [court], with a flourish of its judicial cape, transformed the stay papers into a petition for certiorari, which it graciously granted. This is turbocharged justice!”
“I was always pretty sure that the Supremes — not even the uber conservatives — were not ever going to let the 5th Circuit judges stop an administration from implementing a national policy based on national public health issues affecting every American,” Jaffe told The Defender. “That was just never going to happen.”
“That is why they granted the stay and writ of certiorari [granting review of lower court ruling]. For better or for worse, however divided they may be, all the Supreme Court justices have a clear — and I think unanimous — view of their role in deciding major national policy issues, and there are few more important than the First Amendment issues raised in the Missouri and Kennedy v. Biden case.”
Texas-based attorney W. Scott McCollough told The Defender, “We all knew it would end up [in the Supreme Court], even on preliminary injunction, regardless of who prevailed in District Court and the Court of Appeals.”
‘Truly important federal questions’ may hasten court decision
McCollough said, “The issues … are truly important federal questions that must be decided soon” and compelled the Supreme Court to agree to hear the case.
“Timing is very important, given the implications for the 2024 elections in particular and all the societal disruption, division and censorship over the last several years that promise to continue without some judicial resolution,” he said.
“The court finally — and properly — decided it had to deal with it now,” he added.
NPR reported that the Supreme Court will likely hear the case in February or March, although Jaffe, writing on his blog, explained that a decision would likely come later.
“The judicial gears will likely slow the case down, with a decision arriving around June 2024,” he wrote, adding, “Yet, in this grand theater of law, a surprise act may yet emerge to steal the spotlight. We shall see.”
Jaffe said cases accepted in the early part of the court’s term are usually decided towards the end of the term in June. The court must schedule a full briefing and lateroral arguments, “probably in the first month or three of 2024,” he said.
McCollough noted, however, that by granting both the writ of certiorari and the stay, the Supreme Court opted for a faster route to hear the case than it otherwise might have.
“This means the court decided to immediately start on merits processing without the parties having to go through the normal certiorari process,” he said. “The questions presented in the stay application will be the questions presented for merits briefing.”
These questions include whether the plaintiffs in the lawsuit have legal standing, whether their First Amendment rights were violated and whether “the terms and breadth” of the preliminary injunction are proper.
“What this means from a practical perspective is the court significantly shortened the time it will take to receive merits briefing, obtain oral argument and then decide,” McCollough said.
Holland told The Defender:
“The majority of the court’s justices noted that they would examine the questions that the parties raise, which is essentially whether the government may continue to instruct, partner with, threaten and coerce Big Tech to censor alleged ‘misinformation.’”
Biden officials may ‘moderate their behavior’ to reduce ‘paper trail’ of suppression
According to Rosenberg, while a “decision on the merits of this case could be several months away,” in the interim, “the administration is not prohibited from continuing to engage in activities that already have been found likely unconstitutional and to develop other means of censorship.”
Notably, CHD and its chairman on leave, Robert F. Kennedy Jr., on Sept. 20 filed an amicus brief with the Supreme Court, opposing the pause, days after the stay was first granted, on Sept. 14. The Supreme Court subsequently extended the stay on Sept. 22 and Oct. 13.
Some legal experts told The Defender that even though the injunction barring the Biden administration from communicating with social media platforms about “misinformation” is paused, the proceedings thus far in the case may nevertheless result in the government moderating its efforts to suppress disfavored speech.
“Technically, the injunction is stayed,” McCollough said. “That is a bad thing since the defendants are not legally prohibited from the activity spelled out in the 5th Circuit’s injunction. But there is a lot of incentive for them to moderate their behavior, at least somewhat, although I suspect they will still find ways to pressure the platforms.”
“They will just be a lot more careful about leaving the kind of paper trail as exists here,” McCollough added.
Similarly, Glaser told The Defender, “Time will tell what the Biden administration will attempt to censor next, but future censorship is likely to continue backfiring.”
“Americans are talking to one another on multiple platforms simultaneously and abandoning social media companies such as Facebook, who are known for complicity in government censorship. Kennedy v. Biden exposes quite well such government censorship.”
Court’s decision also will affect Kennedy v. Biden
Jaffe told The Defender that even though the Supreme Court is only examining the preliminary injunction issued in Missouri v. Biden — which was issued before Kennedy et al. v. Biden et al. was consolidated with this lawsuit — “the Supreme Court’s decision will likely be dispositive of that case as well.”
Jaffe said that Kennedy et al. v. Biden et al. is not part of the case on which certiorari has just been granted and that the limited record in that case will not be part of the Supreme Court’s decision.
But since Kennedy et al. v. Biden et al. is now consolidated with Missouri et al. v. Biden et al., the decision will be binding on the 5th Circuit and the District Court’s decisions in the consolidated case, according to Jaffe.
McCollough provided further insights as to the implications of the Supreme Court’s Friday ruling on the Kennedy et al. v. Biden et al. lawsuit.
“The injunction — even as modified by the 5th Circuit — covers and protects the Kennedy plaintiffs,” he said. “I suspect the Kennedy plaintiffs will, as they hinted in note 7 of their September amicus brief, move to intervene as full parties.”
“The Kennedy plaintiffs are both speakers and users and have suffered censorship as such. That provides clear standing,” McCollough added.
‘Billions of people’ will be affected by the Supreme Court’s ruling
Legal experts who spoke with The Defender also shared their perspectives about how the Supreme Court might ultimately rule and the implications of its forthcoming decision.
McCollough discussed the possibility of several “combined outcomes”:
“The court could rule that the Biden effort is permissible and platforms cannot be prohibited from voluntarily censoring. It could hold that the Biden effort is not permissible but platforms can voluntarily censor. It could decide the Biden effort is not permissible and a state can prohibit voluntary, private actor viewpoint discrimination.”
McCollough referred to two other cases pending before the Supreme Court during the current term, concerning Texas and Florida state laws which prohibit large social media platforms from censoring users’ content.
“The Florida and Texas cases also address whether states can require full disclosure of the platforms’ ‘content’ rules and their censorship-related activities,” McCollough said.
Jaffe, who will analyze the legal issues at play during a panel on Nov. 5 at the forthcoming CHD conference, also discussed on his blog the rapidly changing landscape of free speech issues that might impact how plaintiffs present their arguments before the Supreme Court.
“I would submit that the world is different from when this case was litigated … Hate speech and intimidation are front and center. Hopefully, the litigants seeking to uphold the injunction will understand that,” Jaffe wrote.
This might mean “a more narrow approach,” including making “distinctions which might not have been previously necessary to garner the middle three,” he added, referring to the Supreme Court’s three moderate justices.
According to Glaser, the Biden administration’s behavior has also “effectively morphed” due to society being “now exponentially better informed” such that what the government was calling “misinformation” about “COVID-19, Hunter Biden, and so much more” is now being recognized as “facts that were simply different than the government’s false narrative.”
“This case is an example where the slow wheels of justice are a good thing,” he said, adding, “Ironically, with each passing month the Biden administration itself is exposed as the repeat purveyor of misinformation and disinformation.”
“This [censorship] won’t stop until it is made to stop. Free speech is a pressure release mechanism … The court surely knows it must do something that turns down the fire or allows grievance venting. Otherwise, we face continued strife, the end of this Republic and the elimination of individual liberties, [including] freedom of conscience.”
Along similar lines, Glaser said:
“For Americans, free speech is not really a partisan issue. Every reasonable person likes free speech, it’s part of our culture and law.
“This empowers the Supreme Court to readily decide the case and also to set national precedent and guidance for future cases in this area of social media free speech.
“Billions of people will be affected worldwide by the ruling.”