Justice Alito temporarily pauses limits on White House communication with social media firms

WASHINGTON (CN) — Justice Samuel Alito agreed on Friday to put a temporary hold on a federal judge’s ruling limiting the White House’s communication with social media firms. 

The Bush appointee’s temporary stay will last until Oct. 20, giving the high court more time to issue an order in the case. President Joe Biden initially asked the justices for relief last month, however, interference from an appeals court complicated the high court’s role in the case. 

Missouri and Louisiana sued the White House and leaders of several federal agencies for what they saw as a targeted attack on right-wing and conservative political views. The states claim the government suppressed the First Amendment rights of social media users when it urged platforms to remove Covid-19 misinformation. 

Social media companies regulate users’ posts to avoid hosting harmful content. For example, in 2020, Twitter amended its content moderation policies to account for information contradicting authoritative sources of global and local public health information. The government assists in this process by sharing information with platforms that it thinks might be helpful in mitigating harm. 

During the pandemic, the CDC informed social media companies of rampant Covid-19 misinformation. In 2021, the White House press secretary, Jen Psaki, said Biden viewed removing harmful misinformation as a responsibility of social media platforms. 

The states claim these efforts amounted to a federal censorship enterprise. For example, the lawsuit alleges that the White House digital director for the government’s Covid-19 response emailed Twitter about an anti-Covid vaccine tweet from Robert F. Kennedy. The lawsuit also claims YouTube removed footage from the Louisiana Department of Justice that criticized mask mandates and lockdown measures. 

“They pressure the companies to censor disfavored viewpoints, and they also force the companies to rewrite their policies to ensure that future speech disfavored by the government will also be suppressed,” Elizabeth Murrill, Louisiana’s solicitor general, wrote in the state’s brief. “In doing so, they impose a nationwide, de facto prior restraint against expressing disfavored viewpoints on some of the greatest debates of our time.” 

The states claim the federal government targeted viewpoints it disagreed with and prevented private citizens from exercising their First Amendment rights. 

“Social-media platforms once provided ‘the most powerful mechanisms available to a private citizen to make his or her voice heard,’” Murrill wrote. “Under pressure of federal censorship, that is no longer true — a situation that is intolerable to the First Amendment.” 

Jim Hoft, the owner and editor-in-chief of The Gateway Pundit, a far-right news website, is one of several individuals who joined the states’ suit. Hoft was suspended from Twitter following his critiques of Dr. Anthony Fauci, who led the administration’s pandemic response, and promotion of conspiracy theories. 

U.S. District Judge Terry Doughty, a Trump appointee, ordered several government agencies to halt communicating with the platforms in a lengthy Fourth of July ruling. Doughty said the government was assuming a role “similar to an Orwellian ‘Ministry of Truth.’” 

The Fifth Circuit limited Doughty’s ruling but refused to throw it out completely. 

The Biden administration then turned to the Supreme Court for emergency action. U.S. Solicitor General Elizabeth Prelogar called the lower court rulings unprecedented and a violation of the First Amendment. 

“It is axiomatic that the government is entitled to provide the public with information and to ‘advocate and defend its own policies,’” Prelogar wrote. “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 government claims there is no evidence that the moderation of these posts happened in direct response to the government’s actions on misinformation so the states lack standing. 

“The Fifth Circuit also held that the state respondents have standing because they have a ‘right to listen’ to their citizens on social media,” Prelogar wrote. “But the court cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent’s right to speak.” 

Prelogar told the justices that should the Fifth Circuit’s ruling stand, it would radically extend the state-action doctrine. 

“If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public,” Prelogar wrote.

While the administration's initial emergency application was pending, the Fifth Circuit jumped back into the fray by granting a rehearing request from the states. The states wanted the appeals court to widen its initial ruling, however, the rehearing grant came while the case was already at the high court and before the government could even respond to the request — a highly unusual turn of events.

The high court allowed its initial temporary stay in the case to expire while the Fifth Circuit sorted out the rehearing. After the appeals court agreed to expand its initial ruling, the Biden administration turned around and asked the justices to jump back into the case.

Alito’s order instructs both parties to submit additional briefing in the case. 

Follow @KelseyReichmann

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