In an ongoing dispute over content regulation on social media platforms, the Biden administration last Thursday made an appeal to the Supreme Court. The administration is seeking a temporary block of a lower court’s order which, they claim, limits its ability to converse with social media companies regarding their moderation policies. The appeal was first reported by SCOTUSblog.
Following receipt of the appeal, Justice Samuel Alito, who handles emergency requests from the U.S. Court of Appeals for the 5th Circuit, put the lower court’s order on hold until the end of the day on Friday, September 22. He also directed the plaintiffs to file a response to the government’s application by 4 p.m. on Wednesday, September 20.
The case originates from a federal undertaking to mitigate misinformation on social media. This was primarily executed by flagging content that could spread misinformation and urging platforms to remove it. The lawsuit against this operation was raised by Missouri and Louisiana’s Republican attorneys general, and four individual plaintiffs who found their posts concerning controversial subjects such as the COVID-19 origin theory and vaccine side effects, either removed or downgraded. The lawsuit claimed constitutional First Amendment violation, alleging that the government had ‘coerced, threatened, and pressured social-media platforms to censor’ them.
In contrast, the federal government justified its actions as a necessary measure for mitigating the hazards of online misinformation. It claimed to have only flagged content deemed as violating the platform’s policies.
On September 11, an appeal by the Biden administration against the Louisiana district court’s order was partially upheld by the 5th Circuit court. They agreed with Judge Terry Doughty’s ruling, holding that government officials had likely breached the First Amendment. They further concluded that the social media platforms’ content moderation constituted them acting on the government’s behalf.
Despite this, the appeal did lead to a narrowing of Doughtry’s original order, limiting its application to fewer government agencies and also restricting their ability to communicate with social media firms.
U.S. Solicitor General Elizabeth Prelogar told the justices that the current order would impose “unprecedented limits” on the administration’s ability to communicate on matters of public concern and issues of national security. She also noted that these limitations could touch the social media companies themselves, as the 5th Circuit’s ruling has the potential to hold them liable for constitutional violations.
Prelogar intends to file a petition for review by October 13. However, she also gave the justices the option to treat the current appeal as a petition for review itself, in a manner similar to the recent Purdue Pharma bankruptcy case.
This case is largely indicative of an escalating stand-off between the federal government and social media platforms, over questions of censorship and the moderation of content online. The outcome of this case could have significant implications for the relationship between the government and social media companies in the future.