The US Supreme Court temporarily stayed on Thursday a lower court ruling which would have restricted the Biden administration’s ability to encourage social media platforms to remove content it considers misleading. The decision temporarily halts a July preliminary injunction imposed upon the Biden administration by a federal court in Louisiana.
In the Biden administration’s application for a stay, Solicitor General Elizabeth Prelogar challenged the standing of the Attorneys General of Missouri and Louisiana, who filed suit against the administration alleging that they violated First Amendment free speech protections under the US Constitution by “threaten[ing] and cajol[ing] social-media platforms for years…to suppress disfavored speakers, viewpoints, and content.”
Prelogar also argued that the preliminary injunction goes against First Amendment protections as it applies to the administration. According to the administration’s application:
It is axiomatic that the government is entitled to provide the public with information and to “advocate and defend its own policies.” 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…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 administration also indicated its intent to formally appeal the decision to the Supreme Court in October 2023. However, the temporary stay will only remain in place through September 22. The administration is permitted to file an extension of the stay, to possibly buy it more time to formally appeal the injunction to the Supreme Court.
Prior to the issuance of the Supreme Court’s stay, the US Court of Appeals for the Fifth Circuit affirmed in part the lower court’s decision. The court adopted the lower court’s reasoning that the social media platforms’ decisions to censor content were likely made at the partially out of fear of “adverse legal or regulatory consequences that could result from a refusal to adhere to the government’s directives.” However, the Fifth Circuit significantly reduced the reach of the lower court’s initial injunction, dismissing nine of the ten prohibitions set forth at the risk of them being “overbroad” and “duplicative.”