In response to an emergency filing from the Justice Department, Supreme Court Justice Samuel Alito issued a temporary pause on a lower-court order that restricted Biden administration officials from coordinating with social media companies regarding flagged misinformation, especially related to COVID-19 and elections.
The Lower Court’s Decision
The U.S. Court of Appeals for the Fifth Circuit, located in New Orleans, had ruled in a 75-page document that the Biden administration overstepped its boundaries by attempting to influence social media platforms on controversial COVID-19 content. The court’s panel consists of two nominees from the era of George W. Bush and one from Donald Trump’s term. Their judgment posits that the government cannot “coerce” these platforms to remove content it finds problematic.
Key Highlights from the Fifth Circuit Ruling:
- The Biden administration “ran afoul” of the First Amendment rights by pressuring social media outlets over controversial COVID-19 information.
- Entities like the U.S. Centers for Disease Control and Prevention, the FBI, President Biden, and the surgeon general cannot exert undue influence on social media platforms about content removal.
- However, the court did omit some language from an earlier Louisiana judge’s ruling, which prevented the government from urging platforms to remove content.
The Underlying Lawsuit
This entire saga was precipitated by a lawsuit originating from Louisiana. The case accuses the Biden administration of intimidating platforms like X (previously known as Twitter) and Facebook. It alleges that there were threats of antitrust lawsuits or changes to federal laws protecting platform liability, primarily targeting conservative voices. The plaintiff roster includes the states of Missouri and Louisiana, a conservative website owner, and four individuals opposing the administration’s COVID-19 policy.
The court’s decision highlighted that the Biden administration utilized intimidation tactics and threats of potential adverse effects to influence platforms’ content moderation decisions. These actions were found to infringe on First Amendment rights.
The Justice Department’s Response
In their emergency filing, the Justice Department stated that if the injunction from the lower court were to be enforced, it would result in “grave and irreparable harms on the government and the public.” Solicitor General Elizabeth Prelogar expressed her concerns stating:
- Senior presidential aides, including the Surgeon General and the White House Press Secretary, risk contempt if their public utterances on policy matters go against the parameters set by the Fifth Circuit.
- CDC officials and FBI agents may face legal repercussions if they flag content deemed inappropriate or misleading.
Alito’s Interim Decision
Justice Alito’s decision postponed the order until after September 22. He has provided time until September 20 for the Republican attorneys general from Louisiana and Missouri, the original plaintiffs, to submit their response.
Alito’s temporary order is a part of the government’s efforts to counteract the injunction issued by the conservative U.S. Court of Appeals for the 5th Circuit. This appeal had paused its earlier decision through September 18, granting the administration an opportunity to appeal to the Supreme Court.
Deepening Debate on Free Speech and Censorship
While the administration aims to tackle the widespread issue of misinformation, especially concerning matters of public health and elections, critics argue that this might be a slippery slope leading to potential censorship and infringement of First Amendment rights.
Effects on Social Media Platforms
Major social media companies such as Facebook and X (formerly known as Twitter) find themselves at the nexus of this debate. The concern is whether they should act as platforms for all kinds of speech or as curators filtering out content that may be misleading or harmful. Their moderation decisions, often backed by their internal teams or third-party fact-checkers, have been a point of contention, especially when concerning political topics.
Implications of the Decision
Solicitor General Prelogar, in her court filings, emphasized the unsettling nature of the Fifth Circuit’s judgments. She mentioned that the decision limits the administration’s ability to address public concerns, hampers the FBI’s capabilities in national security matters, and restricts the CDC from disseminating vital public health information.
Missouri and Louisiana’s attorneys general and other plaintiffs argue that the administration’s efforts to combat online misinformation are a form of unconstitutional censorship. The 5th Circuit, in its recent decision, reduced the broad scope of the lower court’s preliminary injunction from July. This earlier injunction had obstructed several federal agencies from engaging with social media companies on free speech matters. Politico reported on these events in detail, providing insights and expert opinions on the matter.
