The Biden administration asked the Supreme Court on Thursday to freeze an appeals court ruling blocking it from coercing or encouraging social media companies to censor speech.
The Fifth Circuit found Friday that the White House, Surgeon General, Centers for Disease Control and Prevention and the FBI violated the First Amendment, partially upholding a lower court’s decision in the free speech lawsuit Missouri v. Biden. While it ruled that the July injunction issued by District of Louisiana Judge Terry A. Doughty was “vague and broader than necessary,” it issued a revised version prohibiting the Biden administration from taking actions to “coerce or significantly encourage social-media companies” from censoring speech.
“This Court should stay the preliminary injunction pending the disposition of the government’s petition for a writ of certiorari,” Solicitor General Elizabeth Prelogar wrote, adding that the government intends to file its petition by Oct. 13.
“If the Court wishes to expedite matters further, it could construe this application as a petition for a writ of certiorari and grant the petition without further briefing,” Prelogar wrote.
The injunction originally issued by Doughty blocked the administration from coordinating with social media companies to censor speech, and blocked the government from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” research groups and projects that advocate for censorship.
The Fifth Circuit said the district court “erred in finding that the NIAID Officials, CISA Officials, and State Department Officials” violated the First Amendment.
“Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions,” the Fifth Circuit’s ruling explained. “Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government’s message as alluding to some form of punishment.”
The Supreme Court was asked in June to hear another censorship case, O’Handley v. Weber, which concerns the California Secretary of State’s Office of Election Cybersecurity’s coordination with Twitter to monitor “false or misleading” election information. The justices have already agreed to hear a pair of cases, Lindke v. Freed and Garnier v. O’Connor-Ratcliff, which question whether government officials acted in an official capacity when they blocked constituents on social media.
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