The Biden Administration has filed an emergency application with the Supreme Court Thursday regarding a ruling by the Fifth Circuit Court of Appeals that pertains to government officials contacting social media platforms.
If you're a Republican attorney general these days, you're either still litigating the results of the 2020 election or you're litigating the response to the pandemic. And a case brought by the attorneys general of Missouri and Louisiana, along with some individuals who claim their speech was censored on Twitter or some other platform in recent years, melds a little bit of both.
A three-judge panel of the Fifth Circuit upheld a ruling by a Trump-appointed district judge that inveighed against the Biden Administration for the "most massive attack against free speech in United States’ history." That lower court judge, Judge Terry A. Doughty of the Western District of Louisiana, issued a broad, 10-part injunction forbidding federal officials from all sorts of interactions with social media companies. But the Fifth Circuit issued a narrower ruling, tossing out nine of the ten provisions.
Still, the appeals court's unsigned ruling said that administration 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."
It should be noted that all three judges on the panel are Republican appointees, two by George W. Bush and one by Trump.
The suit contends that while private social media companies may make their own decisions about content moderation, federal officials' direct intervention on things like election denials and COVID misinformation amounted to illegal censorship.
As the New York Times reports, in her filing with the Supreme Court, Solicitor General Elizabeth B. Prelogar insisted that any White House should have the power to exert influence of this kind when it's for the public good, and it's up to the company whether to comply.
"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.
This all harkens back to the cries on right-wing media about shadow bans and violations of free speech, particularly around the 2020 election, Hunter Biden's laptop, and ivermectin etc. And almost as soon as he took over Twitter last fall, Elon Musk began releasing old emails to friendly journalists that he cast as The Twitter Files, hoping to drum up more attention to the so-called free speech incursions made during late 2020 and how various Twitter employees discussed them.
This lawsuit doesn't take on the actions of Twitter employees, but it does attack officials for their efforts to encourage content removals.
Justice Samuel Alito, within hours of the filing, issued a stay on the Fifth Circuit's injunction — in his role overseeing the Fifth Circuit. The plaintiffs from Missouri and Louisiana now have until Wednesday to file their response.
As the Times notes, this is one of at least three big cases involving social media that the high court will be dealing with this term. Coming up in late October, the justices will hear arguments in a case they accepted in April involving whether government officials can block citizens from their social media accounts. The court is also likely to take on the case of two laws in Florida and Texas that directly challenge social media companies' content moderation powers.
It remains to be seen whether the Elon Musk and X Corp. have brought against California's content moderation law will get to the Supreme Court anytime soon.
Photo: Jessie Collins
