WASHINGTON (CN) — The midnight deadline on an emergency application from President Joe Biden came and went at the Supreme Court on Wednesday after an apparent communications error at the Fifth Circuit injected uncertainty into the justices’ role in deciding if the White House should be prohibited from talking to social media companies.
The White House appealed to the justices to block a Fifth Circuit ruling that would have limited the Biden administration’s communications with social platforms. Justice Samuel Alito granted a temporary stay to allow the court to review the matter; however, before the court could act, the Fifth Circuit jumped back into the fray.
“Rather than allowing this Court’s proceedings to play out in the ordinary course, the Fifth Circuit first issued an order purporting to grant panel rehearing, then rescinded that order, recalled its mandate, and granted its own stay pending further proceedings on respondents’ rehearing petition,” U.S. Solicitor General Elizabeth Prelogar told the court. “Those orders have injected uncertainty into the proceedings during this Court’s active consideration of the case.”
Red states claim the Biden administration has tried to influence content moderation policies on social media to target right-wing and conservative political views. Missouri and Louisiana argue the government persuaded platforms to violate users' First Amendment rights in its efforts to combat Covid-19 and election misinformation.
U.S. District Judge Terry Doughty, a Trump appointee, issued a Fourth of July ruling ordering the White House to cease its communications with social media companies concerning these issues.
In September, the Fifth Circuit limited the breadth of Doughty’s ruling, excluding a number of government agencies from the ban. The White House then turned to the Supreme Court, asking the justices for additional relief.
The high court issued a temporary stay, scheduled to end on Sept. 27. However, before that deadline, the states asked the appeals court panel for a rehearing to expand the communications ban to additional government agencies.
Before the government could even respond to that petition, the panel had agreed to a rehearing. The move confused the government and left its Supreme Court application in limbo.
Louisiana characterized the move as a “significant procedural development,” but the Biden administration argued the state doesn’t actually say what the grant means to the case.
Prelogar noted that the Fifth Circuit’s original mandate divested the appeals court of its authority over the case. Without recalling the ruling, the government said the rehearing grant would be unjustified.
“The intended effect of the Fifth Circuit’s order is unclear,” Prelogar wrote.
After the government filed additional briefing to the justices explaining the unusual grant, the Fifth Circuit added another twist to the story, rescinding the panel rehearing and pausing its original ruling that would have blocked White House communications.
The Fifth Circuit’s actions that set off these events were reportedly the result of a clerical error. According to reporting from Talking Points Memo, the court never meant to grant a rehearing. A staff member in the clerk's office reportedly made the error that the appeals court then had to backtrack to fix.
The government urged the justices to move forward with its application regardless of what the Fifth Circuit is doing, arguing the case would end up back with the justices again anyway.
“The Fifth Circuit’s unexplained grant of panel rehearing does not purport to modify its prior judgment; the court lacked authority to modify its judgment without recalling its mandate; and the issues decided in that judgment continue to warrant this Court’s review,” Prelogar wrote.
With the Fifth Circuit’s additional stay in place, however, it appears the justices did not think the government’s request was necessary. The high court allowed its stay to expire without any explanation.
Follow @KelseyReichmann
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