Justices: Biden team’s social media lobbying OK
WASHINGTON — The Supreme Court on Friday allowed Biden administration officials to continue to contact social media platforms to combat what the officials say is misinformation, pausing a sweeping ruling from 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 a major test of the role of the First Amendment in the internet era, one that will require the court to consider when government efforts to limit the spread of misinformation amount to censorship of constitutionally protected speech.
Three justices dissented from the court’s decision to lift the restrictions on administration officials while the case moves forward. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Samuel Alito wrote, joined by Justices Clarence Thomas and Neil Gorsuch.
Alito criticized the majority for acting “without undertaking 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 in the spring of next year.”
He added: “At this time in the history of our country, what the court has done, I fear, will be seen by some as giving the government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.”
In asking the Supreme Court to act, Solicitor General Elizabeth Prelogar said the government was entitled to express its views and to try to persuade others to take action.
“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,” she wrote.
In response, the attorneys general of Missouri and Louisiana, both Republicans, along with people who said their speech had been censored, wrote that the administration had crossed a constitutional line.
“The bully pulpit,” they wrote, “is not a pulpit to bully.”
The 5th U.S. Circuit Court of Appeals 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 most likely violated the First Amendment in their bid to persuade companies to remove posts about the coronavirus pandemic, claims of election fraud and Hunter Biden’s laptop.
The panel, in an unsigned opinion, said the officials had become excessively entangled with the platforms or used threats to spur them to act. The panel entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove content protected by the First Amendment.
Prelogar wrote that the panel had made a fundamental error, as the platforms were private entities that ultimately made independent decisions about what to delete.
The plaintiffs responded that the companies had succumbed to lengthy and unlawful pressure. They did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down asserted misinformation amounted to censorship that violated the First Amendment.
The case is one of several presenting questions about the intersection of free speech and technology on the court’s docket. The court recently agreed to hear appeals on whether the Constitution allows Florida and Texas to prevent large social media companies from removing posts based on the views they express. And the court will hear arguments this month on whether elected officials had violated the First Amendment when they blocked people from their social media accounts.
The new case concerned a preliminary injunction initially entered by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana. Doughty, who was appointed by President Donald Trump, said the lawsuit described what could be “the most massive attack against free speech in United States’ history.”
He issued a sweeping 10-part injunction. The appeals court narrowed it substantially, removing some officials, vacating nine of its provisions and modifying the remaining one.