The Supreme Court on Friday said it would indefinitely block a lower court order curbing Biden administration efforts to combat controversial social media posts on topics including COVID-19 and election security.
The justices said they would hear arguments in a lawsuit filed by Louisiana, Missouri and other parties accusing administration officials of unconstitutionally squelching conservative points of view. The new case adds to a term already heavy with social media issues.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas would have rejected the emergency appeal from the Biden administration.
“At this time in the history of our country, 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 that increasingly dominates the dissemination of news. That is most unfortunate,” Alito wrote in dissent.
White House communications staffers, the surgeon general, the FBI and the U.S. cybersecurity agency are among those who would have been affected by the order. The lawsuit said they were among those who coerced changes in online content on Facebook, X (formerly Twitter) and other media platforms.
Notably, the companies themselves are not part of the litigation.
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A panel of three judges on the New Orleans-based 5th U.S. Circuit Court of Appeals had ruled earlier that the administration had likely brought unconstitutional pressure on the media platforms. The appellate panel said officials cannot attempt to “coerce or significantly encourage” changes in online content.
The Justice Department said the appellate ruling and a much broader order issued by a federal judge in Louisiana that the appeals court narrowed were riddled with factual and legal mistakes.
“The Fifth Circuit erred in finding coercion by the White House, Surgeon General’s office, and FBI because the court did not identify any threat, implicit or explicit, of adverse consequences for noncompliance," Solicitor General Elizabeth Prelogar wrote. "Indeed, the Fifth Circuit adopted a definition of coercion so lax that it deemed the FBI’s actions coercive simply because the FBI is a powerful law enforcement agency and the platforms sometimes (but not always) removed the content it flagged.”
The 5th Circuit had previously narrowed a more sweeping order during the summer from a federal judge, who wanted to include even more government officials and prohibit mere encouragement of content changes.
The Supreme Court has four other social media cases on its docket. The justices are evaluating Republican-passed laws in Florida and Texas that prohibit large social media companies from taking down posts because of the views they express. The tech companies said that the laws violate their First Amendment rights. The laws reflect a view among Republicans that the platforms disproportionately censor conservative viewpoints.
Two other cases test whether public officials can block critics from commenting on their social media accounts, an issue that previously came up in a case involving then-President Donald Trump. The court dismissed the Trump case when his presidential term ended in January 2021.
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