EMERGENCY DOCKET

Justices allow federal government continued communication over social media content moderation

The Supreme Court on Friday granted a request from the Biden administration to temporarily block a lower court’s order that would limit the ability of government officials to communicate with social media companies about their content moderation policies. The Biden administration contends that it has sought only to “mitigate the hazards of online misinformation” by flagging content that violated the social media platforms’ own policies. But two states and several individuals whose social media posts were removed or downgraded counter that the government “coerced, threatened, and pressured social-media platforms to censor” them, in violation of the First Amendment.

The justices also agreed to weigh in on the merits of the case during their 2023-24 term, adding yet another issue relating to social media to their docket for the current term. Three justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – indicated that they would have denied the Biden administration’s request, calling Friday’s order “unreasoned” and “highly disturbing.”

The case was brought by five individual plaintiffs, including epidemiologists and physicians who contend that their social media posts criticizing COVID-19 policies and mask and vaccine mandates were censored. Two states with Republican attorneys general, Missouri and Louisiana, allege that both they and their residents have been harmed by the social media platforms’ suppression or censorship of their speech.

In July, U.S. District Judge Terry Doughty agreed with the plaintiffs that the federal government had “apparently engaged in a massive effort to suppress disfavored conservative speech.” Doughty issued an order that limited communications between the White House and several other government agencies with social media platforms about virtually all content. 

The Biden administration appealed to the U.S. Court of Appeals for the 5th Circuit, which largely upheld Doughty’s order. It characterized the conduct at the center of the case as a “coordinated campaign” “orchestrated by federal officials that jeopardized a fundamental aspect of American life.” But the court of appeals limited Doughty’s order to the White House, the Surgeon General, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation.

The Biden administration came to the Supreme Court on Sept. 14, asking the justices to put Doughty’s order on hold. U.S. Solicitor General Elizabeth Prelogar told the justices that the order would put “unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public-health information at platforms’ request.”

Prelogar rejected the 5th Circuit’s conclusion that the government had coerced or threatened social media platforms to get them to remove content. Instead, she depicted the relationship as a collaboration in which the two sides “sometimes disagreed, and occasionally became frustrated with one another.”

The plaintiffs urged the justices to allow the lower court’s order to go into effect, telling the justices that “the bully pulpit is not a pulpit to bully.” Doughty’s decision and the evidence, they stressed, “establish an extensive campaign by federal officials” to “silence disfavored viewpoints on social media,” sometimes using “a battery of harassing and menacing statements” to pressure social media platforms to take action. And allowing Doughty’s order to remain in effect while litigation continues will not harm the government, they insisted, because the order simply tells them “to do what the Constitution already requires them to do.”  

Justice Samuel Alito, who handles emergency appeals from the 5th Circuit, put the lower court’s order on hold temporarily to give the justices time to consider the Biden administration’s request.

Even as the justices considered that request, however, the case continued to unfold in the court of appeals. On Sept. 22, the challengers filed a petition for rehearing, asking the court of appeals to reinstate the portion of Doughty’s order that applied to the State Department and the Cybersecurity and Infrastructure Security Agency. The court of appeals granted that request in part on Oct. 3, issuing a revised opinion that extended Doughtry’s order only to the CISA.

In a filing on Oct. 5, the Biden administration once again urged the justices to put Doughty’s order on hold and suggested that the justices could fast-track the case for briefing and oral argument on the merits. Prelogar stressed that the court of appeals had not cited any “precedent for its conclusion that when private companies choose to request or follow advice from the government, the companies thereby become state actors” whose conduct could violate the First Amendment. And even if it is true that, as the court of appeals contended, social media companies changed their moderation policies or removed content in response to agencies like CISA, Prelogar explained, that would still not transform “the platforms’ private decisions into state action because it would not demonstrate that CISA offered the type of positive incentives that overwhelm a party’s independent judgment.”

The plaintiffs pushed back, telling the justices that the Biden administration’s “conception of state action is too narrow.” CISA, they wrote, “engaged in a relentless campaign, involving hundreds of meetings and thousands of communications, to pressure platforms to silence other peoples’ views.” In doing so, they continued, the CISA effectively controlled the platforms’ content-moderation policies “and became directly involved in hundreds of individual content-moderation decisions involving specific speakers, content, and viewpoints” – a violation of the First Amendment.

In an unsigned order on Friday afternoon, the Supreme Court granted the Biden administration’s request to freeze Doughty’s order, as modified by the 5th Circuit, until the justices issue their decision on the merits, presumably in June 2024.

In a five-page opinion, Alito – joined by Thomas and Gorsuch – dissented from the court’s decision to put Doughty’s order on hold. Alito complained that his colleagues had put Doughty’s order on hold “without undertaking a full review of the record and without any explanation” until the court issues its ruling on the merits sometime next year. And they did so, Alito continued, even though the Biden administration had not shown that it would be permanently harmed if Doughty’s order remained in place, a key factor in deciding whether to grant its request.

“At this time in the history of our country,” Alito wrote, “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” – social media – “that increasingly dominates the dissemination of news. That is most unfortunate,” Alito concluded.

The dispute over the Biden administration’s conduct joins two other sets of cases on the court’s 2023-24 docket involving the interaction between the government and social media. On Oct. 31, the court will hear oral arguments in a pair of cases involving the liability of public officials who block members of the public on their personal social media accounts. The justices will hear oral arguments early next year in another pair of cases involving the constitutionality of controversial laws in Florida and Texas that would regulate how large social media companies control content posted on their sites. Decisions in those cases are expected by summer 2024.

This article was originally published at Howe on the Court.