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The U.S. Supreme Court late last week extended its temporary pause on a lower-court ruling that blocked the Biden administration from communicating with social media about removing content the administration deems “misinformation.”
The order, signed by Associate Justice Samuel Alito, is the latest development in a case that has bounced several times between the U.S. Supreme Court, the U.S. Court of Appeals for the 5th Circuit and the U.S. District Court for the Western District of Louisiana Monroe Division.
The suit was filed by the attorneys general of Missouri and Louisiana and several individual plaintiffs, including Jay Bhattacharya, M.D., Ph.D., Martin Kulldorff, Ph.D., Dr. Aaron Kheriaty, Jill Hines and Jim Hoft, founder and editor-in-chief of The Gateway Pundit, who claim they were censored by social media platforms.
According to Reuters, the temporary stay, which will remain in place until Oct. 20, “gives the justices more time to consider the [Biden] administration’s request” to block the injunction issued by the lower courts.
The injunction, first issued in July, applied to the White House, the surgeon general, the Centers for Disease Control and Prevention (CDC), the FBI and, as of an Oct. 3 ruling by the 5th Circuit, the Cybersecurity and Infrastructure Security Agency (CISA).
Children’s Health Defense (CHD) and its chairman on leave, Robert F. Kennedy Jr., on Sept. 20 filed an amicus brief with the Supreme Court, opposing the pause.
CHD and Kennedy in March filed a similar lawsuit against the Biden administration, alleging “a systematic, concerted campaign” by the government to censor speech on social media. In July, the District Court consolidated the two lawsuits.
Kim Mack Rosenberg, acting general counsel for CHD, said Friday’s Supreme Court ruling was “frustrating” but unsurprising. She told The Defender:
“While it is not surprising that the Supreme Court has left a stay of the injunction against the Biden Administration in place for a further brief period of time … it is frustrating that the administration can continue the very actions that two courts have thus far found warranted an injunction related to alleged First Amendment violations.”
Other legal experts who spoke with The Defender noted that Friday’s order is not based on the assessments and is merely a procedural formality, allowing the court time to review both parties’ arguments.
Jenin Younes, litigation counsel for the New Civil Liberties Alliance (NCLA), representing several of the individual plaintiffs in the lawsuit, said, “The Supreme Court’s order from Friday means very little. It is an extension of an administrative stay, which is not based on an assessment of the merits.”
“Rather, it maintains the status quo until the court has the opportunity to assess the parties’ arguments with respect to whether a longer-term stay is warranted,” she said.
California-based attorney Greg Glaser said, “This latest development is about timing and suggests the Supreme Court is quite close to providing nationwide guidance on whether the Biden administration can effectively say to social media companies, ‘Hey that’s a nice social media company you got there, would be a shame if we investigated and shut you down.’”
“The Supreme Court is not naive and is likely to favor plaintiffs’ argument that courts are required by law to protect free speech against government regulation of content and viewpoint. Indeed, our First Amendment is so strong that the most likely ways that governments try to unlawfully regulate viewpoints is indirectly,” Glaser added.
Lawsuit pits ‘free speech against content moderation’
On July 4, U.S. District Judge Terry Doughty issued a 155-page ruling finding there is “substantial evidence” the government violated the First Amendment by engaging in a censorship campaign targeting content that questioned establishment narratives on COVID-19.
In that ruling, the court enjoined the U.S. Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases, the CDC, the U.S. Department of Justice, the U.S. Department of Homeland Security, the U.S. Department of State and CISA from communicating with social media companies about “misinformation.”
The Biden administration appealed to the 5th Circuit, which heard oral arguments in August. On Sept. 8, the 5th Circuit partially upheld the July 4 ruling but removed CISA and some other federal agencies and officials from the injunction. On Oct. 3, the 5th Circuit added CISA to the injunction.
Missouri et al. v. Biden et al. “represents one of numerous legal battles underway pitting free speech against content moderation on the internet,” including on issues such as COVID-19 and election integrity, Reuters reported.
The complaint alleges the Biden administration colluded with platforms such as Twitter, Meta, YouTube, Instagram and LinkedIn to “suppress disfavored speakers, viewpoints and content” on topics such as COVID-19, election integrity, and the Hunter Biden laptop scandal, to prevent the spread of “misinformation” and “disinformation.”
The Biden administration argued the lawsuit aims to “suppress the speech of federal government officials under the guise of protecting the speech rights of others.”
Government lawyers have also claimed the injunction “would significantly hinder” the government’s ability to “provide accurate information to the public on matters of grave public concern such as health care and election integrity.”
“The Biden administration is desperately claiming that courts should not get involved in such government regulation of social media companies because the government is only making ‘suggestions,’” Glaser said.
Dr. Anthony Fauci and several other Biden administration officials have provided sworn depositions as part of the ongoing lawsuit.
‘Significant constitutional rights are at stake’
Rosenberg told The Defender that Kennedy et al. v. Biden et al. remains unaffected by the ongoing stay in Missouri et al. v. Biden et al.
“In the meantime, the Kennedy and CHD et al. v. Biden et al. case continues, though the District Court is unlikely to rule on plaintiffs’ request for an injunction in that case while the Missouri v. Biden case winds its way through appellate review,” she said.
Younes said further rulings from the Supreme Court may come as soon as next week.
“The court may also determine whether or not to grant certiorari when it issues its decision on the stay motion next week,” she said. “It’s never possible to know for certain whether or not the court will grant certiorari, but I, along with many others familiar with the case, consider it likely.”
According to the Legal Information Institute, “In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as ‘granting certiorari.’”
Legal experts told The Defender that whatever the U.S. Supreme Court ultimately decides will have significant constitutional and free speech implications.
“The outcome of this Biden v. Missouri case will affect the content Americans see on social media in 2023-24 — in advance of the election — and will set the tone for future First Amendment cases. Constitutional lawyers are therefore on the edge of their seats,” Glaser said.
Rosenberg told The Defender, “I am hopeful that the Supreme Court carefully weighs the issues before it but expeditiously rules as significant constitutional rights are at stake in these cases, which have brought to light — with voluminous evidence — unprecedented censorship by the Biden administration, applying coercive pressure of social media companies.”