Supreme Court Blocks Order Forbidding Biden Administration Officials From Meddling in Social Media Content Decisions

An appeals court ruling last week suggests there is ample evidence that government officials sought to suppress content on Facebook and elsewhere in violation of Americans’ First Amendment rights.

AP/Richard Drew, file
Facebook's logo at the Nasdaq MarketSite at Times Square. Officials who threatened Facebook, Twitter, and Google with consequences if they failed to comply with censorial orders knew their issuances were unconstitutional. They did it anyway. AP/Richard Drew, file

The Biden administration Thursday asked the Supreme Court to overrule a lower court ruling that prevents some of its officials from communicating with social media platforms over concerns that their interference in the platforms’ content moderation efforts amounts to an unlawful infringement on Americans’ First Amendment rights.

Associate Justice Samuel Alito immediately granted the request, putting the lower court’s decision on hold until at least September 22.

A Louisiana federal judge ruled in July that the administration’s efforts to tamp down what it called “misinformation” surrounding Covid vaccines and election integrity amounted to what he called a “dystopian” infringement on the First Amendment rights of Americans. The judge, Terry Doughty, likened the actions taken by officials at the FBI, the White House, the Centers for Disease Control and Prevention, and others to those of an “Orwellian ‘Ministry of Truth.’”

The ruling enjoined several government agencies and specific people in those agencies from contacting social media platforms for the purposes of “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” The ruling allowed for exceptions in criminal cases and issues of national security.

The Biden administration appealed Judge Doughty’s ruling to the Fifth Circuit, which last week upheld his decision but narrowed the scope of the injunction. The appeals court agreed that the administration violated the First Amendment rights of the plaintiffs but called the injunction against communications “vague and broader than necessary.”

The initial lawsuit in the case, Missouri v. Biden, was filed by two Republican attorneys general and a number of scientists and journalists whose work and speech — particularly about Covid policies, but also about the integrity of the 2020 election and news items about Hunter Biden’s laptop — was blocked on social media platforms at the behest of officials from the White House and elsewhere in the administration.

In its appeal to the Supreme Court, the Biden administration insists that the social media platforms made their content moderation decisions only in consultation with government officials and not at their behest.

“Rather than any pattern of coercive threats backed by sanctions, the record reflects a back-and-forth in which the government and platforms often shared goals and worked together, sometimes disagreed, and occasionally became frustrated with one another, as all parties articulated and pursued their own goals and interests during an unprecedented pandemic,” the appeal reads.

That claim, though, was found to be less than credible by both the federal district court and the riders of the Fifth Circuit. “Officials, via both private and public channels, asked the platforms to remove content, pressed them to change their moderation policies, and threatened them — directly and indirectly — with legal consequences if they did not comply,” the appeals court’s 74-page opinion states.

The administration said that allowing the lower court’s injunction to stand unjustly interferes with the decisions of private social media companies regarding the content appearing on their own platforms. It also said Judge Doughty’s injunction places him as “the superintendent of the executive branch’s communications with and about social media platforms.”

It said the ruling “flouts bedrock principles” of the Constitution.

“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,” the document says. “Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion.”

The New York Sun

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