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Biden admin sprints to SCOTUS, warns of ‘grave’ harms days after Fifth Circuit ruled CDC and FBI officials likely ‘coerced’ social media platforms to ‘censor’ speech

Joe Biden

(L) Official Twitter account of Joe Biden, the President of the United States of America, is displayed on a mobile phone screen (Photo by Beata Zawrzel/NurPhoto via AP); (R) President Joe Biden speaks to media after leaving a lunch meeting with Senate Democrats on January 13, 2022. (Graeme Sloan/Sipa USA)(Sipa via AP Images)

Six days after the conservative U.S. Court of Appeals for the Fifth Circuit agreed that officials in the FBI, CDC, the White House, and the COVID-19 Response Team likely violated the First Amendment by “coercing and significantly encouraging ‘social-media platforms to censor disfavored [speech],'” the Biden administration has asked the Supreme Court to step in.

In the application, U.S. Solicitor General Elizabeth Prelogar asked the high court to put on hold the district court-issued injunction “as modified by the Fifth Circuit” pending the “disposition” of the writ of certiorari that the government intends to file with SCOTUS by Oct. 13.

Prelogar began by asserting that the Fifth Circuit’s decision last Friday propped up “an unprecedented injunction installing the United States District Court for the Western District of Louisiana 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.”

The three-judge appellate panel including U.S. Circuit Judges Edith Brown Clement, Jennifer Walker Elrod and Don Willett — the first two jurists appointed by George W. Bush and the lattermost by Donald Trump — agreed with the plaintiffs that federal officials “ran afoul of the First Amendment by coercing and significantly encouraging” social media companies to remove content the government deemed misinformation or disinformation.

The plaintiffs, the states of Missouri and Louisiana, Dr. Aaron Kheriaty, Dr. Martin Kulldorff, Dr. Jayanta Bhattacharya, Jill Hines, and The Gateway Pundit’s Jim Hoft, persuaded the court that their posts about COVID-19 vaccine mandates and the lab-leak theory, Hunter Biden’s laptop, election fraud claims, and more were “censored” because social media companies became state actors by caving to the government’s coercion or significant encouragement.

“[T]he Individual Plaintiffs have shown a substantial risk that the injuries they suffered in the past will reoccur,” the Fifth Circuit said, adding: “And there is no evidence to suggest that the government’s meddling has ceased.”

More Law&Crime coverage: Trump-appointed judge smacks down Biden administration’s ‘Orwellian’ anti-disinformation efforts

The Fifth Circuit concluded that federal officials “made clear that the platforms would suffer adverse consequences if they failed to comply, through express or implied threats, and thus the requests were not optional.” The ruling prolonger a stay on the effect of the injunction until Sept. 18 so the government would have enough time to take its case to SCOTUS.

The Biden administration’s SCOTUS application has now responded that the “sweeping” injunction “flouts bedrock principles of Article III, the First Amendment, and equity” and is both “startling” and “radical” in scope:

The implications of the Fifth Circuit’s holdings are startling. 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. And the Fifth Circuit’s holding that platforms’ content-moderation decisions are state action would subject those private actions to First Amendment constraints — a radical extension of the state-action doctrine.

Prelogar, highlighting the “fundamental distinction between persuasion and coercion,” (her emphasis), also framed the Fifth Circuit’s ruling as an encroachment on the presidency and a threat to the separation of powers:

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. President Kennedy famously persuaded steel companies to rescind a price increase by accusing them of “ruthless[ly] disregard[ing]” their “public responsibilities.” John F. Kennedy Presidential Library & Museum, News Conference 30 (Apr. 11, 1962), President Bush decried “irresponsible” subprime lenders that shirked their “responsibility to help” distressed homeowners. The White House, President Bush Discusses Homeownership Financing (Aug. 31, 2007), And every President has engaged with the press to promote his policies and shape coverage of his Administration. See, e.g., Graham J. White, FDR and the Press (1979).

Prelogar argued that the Fifth Circuit did not take care to draw the distinction between coercion and persuasion and, in doing so, the appellate court embraced the very kind of “expansive theories of state action” that SCOTUS has “warned against.”

“The Fifth Circuit ignored those principles,” the solicitor general said. “It held that officials from the White House, the Surgeon General’s office, and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action — and despite the fact that the platforms declined the officials’ requests routinely and without consequence.”

The Biden administration said that if SCOTUS wants to fast-track this case, it could “construe this application as a petition for a writ of certiorari, grant the petition and a stay, and set the case for argument.”

If so, said Prelogar, the government is prepared to pose three questions: Did the plaintiffs actually have standing? Did the government’s “challenged conduct” really transform social media companies into state henchmen to violate the First Amendment? And did the preliminary injunction go too far in its “terms and breadth.”

If the court is not inclined to move quickly, Prelogar continued, SCOTUS should “[a]t a minimum […] stay the injunction insofar as it applies beyond any content posted by the individual respondents themselves.”

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Matt Naham is the Senior A.M. Editor of Law&Crime.