The Supreme Court on Friday allowed Biden administration officials continue to communicate with social media platforms to combat what officials say is misinformation, pausing a radical failure of a federal appeals court that had severely limited such interactions.
The justices also agreed to hear the administration’s appeal in the case, setting the stage for an important test of the role of the First Amendment in the Internet age, a test that will require the court to consider when the government’s efforts to limit the spread of misinformation are greater. to censorship of constitutionally protected speech.
Three justices dissented from the court’s decision to lift restrictions on administration officials while the case proceeds. “Government censorship of private speech is antithetical to our democratic form of government, and today’s decision is therefore deeply troubling,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.
Justice Alito criticized the majority for acting “without conducting a full review of the record and without any explanation” and allowing the administration to continue its interactions until the court finally rules, “an event that may not occur until late spring.” of the next year”. .”
He added: “At this time in our country’s history, I fear that some will see what the court has done as a green light for the government to use heavy-handed tactics to skew the presentation of opinions in the media. which increasingly dominates the dissemination of news. “That is very unfortunate.”
In asking the Supreme Court to actAttorney General Elizabeth B. Prelogar said the government had the right to express its views and try to persuade others to take action.
“A central dimension of presidential power is the use of the pulpit of office to try to persuade Americans – and American businesses – to act in ways that the president believes would further the public interest,” he wrote.
In responseThe attorneys general of Missouri and Louisiana, both Republicans, along with people who said his speech had been censored, wrote that the administration had crossed a constitutional line.
“The bully pulpit,” they wrote, “is not a bully pulpit.”
The U.S. Court of Appeals for the Fifth Circuit ruled last month that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI had likely violated the First Amendment in their attempt to persuade companies to remove posts. on the coronavirus pandemic, voter fraud allegations and Hunter Biden’s laptop.
The panel, in an unsigned opinion, said officials had excessively tangled with the platforms or used threats to prompt them to act. The panel issued an injunction prohibiting many officials from significantly coercing or encouraging social media companies to remove content protected by the First Amendment.
Ms. Prelogar wrote that the panel had made a fundamental error, as the platforms were private entities that ultimately made independent decisions about what to remove.
“It is indisputable that the content moderation decisions at issue in this case were made by private social media companies, such as Facebook and YouTube,” he wrote.
The plaintiffs responded that the companies had succumbed to prolonged and unlawful pressure. They did not dispute that the platforms had the right to make independent decisions about what to include on their sites. But they said the conduct of government officials in urging them to remove alleged misinformation amounted to censorship that violated the First Amendment.
“The government’s relentless demands on the platforms,” they wrote, “were carried out against the backdrop of a constant drumbeat of threats of adverse legal consequences from the White House, senior federal officials, members of Congress, and key congressional staff.” , made over a period of at least five years.”
The case is one of several questions raised about the intersection of free speech and technology in the court docket. The court recently agreed to hear appeals over whether the Constitution allows Florida and Texas to prevent large social media companies from removing posts based on the opinions they express. And the court will hear arguments this month on whether elected officials violated the First Amendment when they blocked people from their social media accounts.
The new case concerned a precautionary measure initially issued by Judge Terry A. Doughty of the United States District Court for the Western District of Louisiana. Judge Doughty, appointed by President Donald J. Trump, said the lawsuit described what could be “the most massive attack on free speech in American history.”
He issued a broad 10-part injunction. The appeals court substantially reduced it, dismissing some officials, annulling nine of its provisions and modifying the remaining one.
Judge Doughty had prohibited officials from “in any way threatening, pressuring or coercing social media companies to remove, remove, suppress or reduce content published in posts containing protected free speech.”
The appeals court panel wrote that “those terms could also capture otherwise lawful speech.” The panel’s revised court order said officials “shall not take any action, formal or informal, directly or indirectly, to significantly coerce or encourage social media companies to remove, remove, suppress or reduce, including by altering their algorithms, content published on social networks that contains free protected information”. speech.”
Summing up its conclusion, the panel wrote: “Ultimately, we find that the district court did not err in determining that various officials (namely, the White House, the surgeon general, the CDC, and the FBI) likely forced or significantly encouraged social media platforms to moderate content, turning those decisions into actions. In doing so, the officials likely violated the First Amendment.”
In a later decisionthe panel added the Cybersecurity and Infrastructure Security Agency and six of its officers and employees.
Two members of the panel, judges. Edith B. Clemente and Jennifer Elrod, were appointed by President George W. Bush. The third, Judge Don R. Willettwas appointed by Mr. Trump.
In their briefs before the Supreme Court, both sides agreed that the case was momentous, although for different reasons.
“The implications of the Fifth Circuit’s findings are striking,” Ms. Prelogar wrote. “The court imposed unprecedented limits on the ability of the president’s closest associates to use the 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 transmit public health information at the request of the platforms.”
The plaintiffs responded that the administration’s actions had caused serious harm. “When the government suppresses or chills the speech of a single American—let alone millions—it impoverishes the national conversation,” they wrote.