Supreme Court pauses limits on Biden administration’s contact with social media firms, agrees to take up case

Washington — The Supreme Court on Friday agreed to temporarily pause a lower court’s order that limited the contact Biden administration officials could have with social media companies as part of government efforts to address the spread of misinformation online.

The justices also agreed to take up the case and decide whether the Biden administration illegally worked to suppress speech by conservatives on platforms like Facebook, YouTube and X. The court will hear arguments this winter, setting the stage for a major ruling on free speech and social media.

A federal district judge in Louisiana issued an injunction over the summer that blocked employees at four federal agencies and the White House from having certain contacts with social media companies. The U.S. Court of Appeals for the 5th Circuit modified the injunction earlier this month.

The Supreme Court’s order on Friday pauses the injunction while the justices consider the matter. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have kept the order in place while the court reviews the case.

“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,” Alito wrote in a 5-page opinion disagreeing with the stay. “That is most unfortunate.”

A fight over free speech and social media

The Supreme Court is seen in Washington, D.C., on Oct. 9, 2023.

MANDEL NGAN/AFP via Getty Images

The case, known as Murthy v. Missouri, stems from a suit brought by five social media users and the Republican attorneys general of Missouri and Louisiana. They alleged a host of federal agencies and officials coerced social media companies to suppress speech on their platforms in violation of the First Amendment.

The challengers highlighted several topics they claimed were censored on social media, including a story about Hunter Biden’s laptop before the 2020 election; the origins of the COVID-19 pandemic; the efficiency of measures to mitigate spread of COVID-19; and the integrity of the 2020 election.

The Biden administration argued it sought to combat the spread of disinformation online by flagging potentially harmful content to social media companies, and noted that the Trump administration took many of the same actions at issue in the suit.

U.S. District Judge Terry Doughty issued a preliminary injunction on July 4 that blocked a number of federal officials, as well as specific agencies, from engaging in a range of communications with social media companies about content “containing protected free speech posted” on their platforms. The order contained several carve-outs, allowing the government to notify social media companies about content involving criminal activity, threats to national security or foreign attempts to influence elections, among other areas.

The government appealed Doughty’s order. The 5th Circuit found officials from the White House and surgeon general’s office engaged in coercion and “significant encouragement” when they communicated with social media companies about specific content. 

The appeals court narrowed the scope of the lower court’s 10-part injunction and who it covered, finding officials with the White House, surgeon general’s office, Centers for Disease Control and Prevention, and FBI likely violated the First Amendment. In its unsigned opinion, the 5th Circuit blocked them from taking actions, “formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”

The government’s argument

In addition to seeking emergency relief from the Supreme Court, the Justice Department said it intended to ask the justices to take the case, which they agreed to do on Friday.

“The court imposed 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,” Solicitor General Elizabeth Prelogar told the high court.

She criticized the district court’s injunction, arguing it is “unprecedented” and encroaches on the separation of powers. She said the court installed itself as “as the superintendent of the Executive Branch’s communications with and about social-media platforms — including senior White House officials’ speech addressing some of the most salient public issues of the day.”

“Under the injunction, the surgeon general, the White House press secretary, and many other senior presidential aides risk contempt if their public statements on matters of policy cross the ill-defined lines drawn by the Fifth Circuit,” Prelogar said. “CDC officials run the same risk if they accurately answer platforms’ questions about public health. And FBI agents risk being haled into court if they flag content posted by terrorists or disinformation disseminated by covert malign foreign actors.”

What the states say

In response to the Justice Department’s request, the attorneys general of Louisiana and Missouri urged the Supreme Court to allow the injunction, which the 5th Circuit temporarily paused through Oct. 13, to take effect. 

“As relevant here, the district court’s findings and the evidence establish an extensive campaign by federal officials in the White House, the Surgeon General’s Office, the CDC, and the FBI to silence disfavored viewpoints on social media,” they wrote in a filing. “This campaign began in 2018, dramatically accelerated in 2021, and continues to the present day.”

The plaintiffs in the case, the Republicans argued, have a right under the First Amendment “to deal with platforms on an even playing field, freed from the stifling hand of federal coercion.”

“Here, federal censorship has fundamentally altered online discourse — rendering entire viewpoints on matters of great public concern virtually unspeakable on social media,” the attorneys general wrote.

The dispute involving the government’s efforts to address misinformation spread on social media is one of several that is before the Supreme Court that stands at the intersection of the First Amendment and online speech.

The justices will hear arguments in October in two cases involving public officials’ actions on social media, including whether elected officials violated the First Amendment when they blocked users from interacting with their content.

The court will also hear a pair of cases challenging laws in Texas and Florida that impose new rules on social media companies and their content-moderation policies, which were enacted in response to claims that conservative users were being silenced by platforms.

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