The Biden administration on Thursday asked the Supreme Court to pause an appeals court ruling that limits the ability of the White House and key agencies to communicate with social media companies about content related to Covid-19 and elections the government views as misinformation.
The administration is looking to undo an injunction issued last week by the conservative 5th US Circuit Court of Appeals. While the injunction was scaled back from a more restrictive trial court order, it still puts strict limitations on the government’s ability to interact with social media platforms.
The injunction now applies to the White House, the surgeon general, the Centers for Disease Control and Prevention and the FBI.
The Justice Department is asking the Supreme Court to pause the injunction while it prepares to formally appeal the order to the high court.
“The implications of the Fifth Circuit’s holdings are startling,” Solicitor General Elizabeth Prelogar wrote in court papers Thursday.
“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,” Prelogar added.
Missouri and Louisiana attorneys general as well as several individual plaintiffs filed a lawsuit last year, alleging that the government’s efforts to combat online misinformation about Covid-19 and US elections amounted to a form of unconstitutional censorship.
In its recent order, the 5th Circuit did significantly scale back a wide-reaching preliminary injunction issued by a lower court in July that effectively blocked a slew of federal agencies and administration officials from communicating with social media companies about taking down “content containing protected free speech” that’s posted on the platforms. In issuing the modified order, the appeals court said the earlier injunction was “both vague and broader than necessary.”
“Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions. 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 5th Circuit panel wrote.
The appeals court left its ruling on pause through September 18 to give the administration time to go to the Supreme Court.
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