The Justice Department asked the Supreme Court on Thursday to pause a novel and sweeping ruling From a federal appeals court barring many kinds of contacts between administration officials and social media platforms.The case, a major test of the role of the First Amendment in the internet era, will require the court to consider when government efforts to limit the spread of misinformation amount to censorship of constitutionally protected speech.A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled last week that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. Had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about the coronavirus pandemic, claims of election fraud and Hunter Biden’s laptop.The panel, in an unsigned opinion, said the officials had become excessively entangled with the platforms or used threats to spur them to act. The panel entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove Content protected by the First Amendment.
In asking the Supreme Court to intervene, Solicitor General Elizabeth B. Prelogar said the government was entitled to press its views, both in public and in private.“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,” she wrote.Ms. Prelogar added that 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.Shortly after the administration filed its application, Justice Samuel A. Alito Jr., who oversees the Fifth Circuit, issued a brief stay of the appeals court’s injunction, to Sept. 22. He ordered the other side to file its brief by Wednesday.
The case is one of several presenting questions about the intersection of free Speech and technology on the court’s docket. On Oct. 31, the court will hear arguments on whether elected officials had violated the First Amendment when they blocked people from their social media accounts. And the court is very likely in the coming weeks to agree to hear appeals on whether the Constitution allows Florida and Texas to prevent large social media companies from removing posts based on the views they express.The case decided by the Fifth Circuit last week was brought by the attorneys general of Missouri and Louisiana, both Republicans, along with individuals who said their speech had been censored.They did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down asserted misinformation amounted to censorship that violated the First Amendment.Judge Terry A. Doughty of the Federal District Court for the Western District of Louisiana agreed, entering a preliminary injunction against many agencies and officials. Judge Doughty, who was appointed by President Donald J. Trump, said the lawsuit described what could be “the most massive attack against free speech in United States’ history.”He issued a sweeping 10-part injunction. The appeals court narrowed it substantially, removing some officials from its ambit, vacating nine of its provisions and modifying the remaining one.
Judge Doughty had prohibited officials from “threatening, pressuring or coercing social media companies in any manner to remove, delete, suppress or reduce posted content of postings containing protected free speech.”The panel wrote that “those terms could also capture otherwise legal speech.” The panel’s revised injunction said officials “shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social media companies to remove, delete, suppress or reduce, including through altering their algorithms, posted social media content containing protected free speech.”Summarizing its conclusion, the panel wrote: “Ultimately, we find the district court did not err in determining that several officials — namely the White House, the surgeon general, the C.D.C. and the F.B.I. — likely coerced or significantly encouraged social media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.”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.