Last weekend, we were wondering whether or not the Biden administration would bother appealing yet another loss with the Missouri v. Biden decision, after both the Fifth Circuit Court of Appeals and a lower court found that the administration had colluded with Big Tech to censor Americans on social media. It looks like we got our answer. On Thursday night, the U.S. Supreme Court, via an order from Justice Samuel Alito, granted a preliminary injunction on the decision on hold until next Friday, September 22. Responses from the plaintiffs are due by Wednesday, September 20.
While the appeals court had narrowed the scope of what federal agencies are involved, it nevertheless found that the White House "in concert with" the Surgeon General's Office "likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment."
The appeals court had given the administration time to appeal, so this isn't anything out of the ordinary. In speaking to Townhall, Curt Levey, a constitutional law attorney and the president of the Committee for Justice, cautioned against reading anything about the merits of the case when it comes to Alito's move. If the Court is to step in, perhaps it could shed some clarity on the role of the federal government here, as well as ensure free speech protections for Americans.
As discussed by SCOTUSblog, the administration is nevertheless standing by its decision to collude with social media:
...U.S. Solicitor General Elizabeth Prelogar told the justices that if the “unprecedented” order is allowed to stand, it would put a Louisiana district judge in charge of overseeing the executive branch’s communications with social media companies...
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The dispute arises from the federal government’s efforts to combat the spread of misinformation on social media by flagging content for social media platforms and urging them to remove that content. The lawsuit was filed by Republican attorneys general in Missouri and Louisiana, as well as four individual plaintiffs whose social media posts on controversial topics such as the COVID-19 lab-leak theory and vaccine side effects were removed or downgraded. They argued that the government “coerced, threatened, and pressured social-media platforms to censor” them, which violated the First Amendment.
The federal government countered that it had only sought to “mitigate the hazards of online misinformation” by flagging content that violated the platforms’ own policies.
The Biden administration came to the Supreme Court on Thursday, asking the justices to step in and put [U.S. District Judge Terry] Doughtry’s order, as modified by the 5th Circuit’s ruling, on hold until it can file a petition for review. The order would have “startling” implications, Prelogar cautioned, by putting “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 added that the lower court’s ruling affects not only government officials but also social media companies, because under the 5th Circuit’s ruling they too can be held liable for violating the First Amendment – for example, simply by accepting a recommendation from the government to moderate content.
Prelogar pushed back against the 5th Circuit’s conclusion that the government had coerced or threatened social media platforms to get them to remove content. Instead, she characterized the relationship as 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.”
Prelogar told the justices that she plans to file a petition for review by Oct. 13, but she suggested that the court could also treat Thursday’s emergency appeal as a petition for review, as it did recently in the case of the Purdue Pharma bankruptcy.
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When it comes to what's "unprecedented," one might point to how much of a role the federal government is insisting on having here. There's also plenty of concerns about overreach here.
"While government officials are free to persuade platforms to remove certain content or accounts, the Fifth Circuit reminded the government that “coercion and significant encouragement” by federal officials--including those in the White House, FBI, and CDC--crossed the line into unconstitutional government censorship," Levey added.
Releases from the Twitter Files and Facebook Files points to chilling examples of collusion between the Biden administration and Big Tech, including when it comes to that "likely coerc[ion]" the court spoke about even with information that didn't actually constitute the "misinformation" the administration claims to need to protect Americans from. The Facebook Files also pointed to involvement from groups that went after Townhall.
As Levey also offered, "Missouri v. Biden is an enormously important case given the federal government’s recent habit of squelching dissent by strong-arming social media platforms to remove content disfavored by the government, concerning controversial topics such as COVID, alleged voting fraud, Hunter Biden’s laptop, and the like."
"Ultimately, it will likely fall to the Supreme Court to determine exactly where that line lies," Levey added, speaking in even stronger terms. "What’s at stake is nothing less than the free speech rights of those whose views the government has deemed harmful, and the First Amendment right of all Americans to hear differing views on contentious issues so that they can decide the truth for themselves."
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