Late yesterday, while many Americans were watching one of the more interesting baseball playoff games in recent memory, the Supreme Court of the United States agreed to review Missouri v. Biden, (5th Cir., No. 23-30445, September 8, 2023), a similarly-complicated and fast-moving case over what two lower courts had found to be a vast federal government effort to censor social media posts that government officials considered to be “misinformation:”
For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.
Enter this lawsuit. The Plaintiffs—three doctors, a news website, a healthcare activist, and two states—had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings—they “coerced, threatened, and pressured [the] social-media platforms to censor [them]” through private communications and legal threats. So, they sued the officials for First Amendment violations and asked the district court to enjoin the officials’ conduct. In response, the officials argued that they only “sought to mitigate the hazards of online misinformation” by “calling attention to content” that violated the “platforms’ policies,” a form of permissible government speech.
Like this case, the Supreme Court’s decision yesterday was itself fast-moving, complicated and controversial: not content with simply granting the federal defendants’ request to review the case, the Court also voted 6-3 to terminate the lower court’s injunction against further coercion and censorship while it considers the merits of the case. The decision to release the lower court’s injunction against censorship, as is customary with emergency orders, was not explained.
Justice Alito, along with Justices Thomas and Gorsuch, dissented from releasing the injunction, asserting that the government’s coercion should not be allowed to continue through the Court’s lengthy review process:
This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on important public issues. Missouri v. Biden, ___ F. 4th ___, ___, 2023 WL 6425697, *27 (CA5, Oct. 3, 2023). To prevent the continuation of this campaign, these officials were enjoined from either “coerc[ing]” social media companies to engage in such censorship or “active[ly] control[ling]” those companies’ decisions about the content posted on their platforms. Id., at *7, *15. Today, however, a majority of the Court, without undertaking a full review of the record and without any explanation, suspends the effect of that injunction until the Court completes its review of this case, an event that may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing. …
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. That is most unfortunate.
Slip op., at 1-2, 5.
The Court majority’s caution about interfering with government activity may have stemmed more from the wide scope of the litigation over the federal censorship effort, as shown by the tens of thousands of pages of evidence and argument already in the case, than from agreement on the merits of supporting government censorship. The Court’s general impulse in such emergency cases, which appear before the lower courts have full trials on the evidence, is to preserve the status quo; that often means that the Court will uphold injunctions. Here, however, where it is difficult to get a handle on the clash of the case’s powerful legal questions, that same impulse may have caused the Justices to defer to the federal government’s arguments about its urgent needs. Thus, the Court’s termination of the injunction does not indicate that the federal government will prevail after the Court hears full briefing and argument, probably by early next year. The prospect of a Court decision, either way, dropping into what is an already-complex election year may goad the Court into acting more quickly than usual. In any event, the Court almost always completes its review of even such complicated and sweeping cases by the end of June of each year.
Because the Court’s grant of certiorari took the case off the “emergency docket,” the Court gave it a new name and case number: Murthy v. Missouri, No. 23-411. President Biden, who was named in the original complaint, was not bound by the lower courts’ injunction against censorship, leaving U.S. Surgeon General Vivek Murthy as the signature Petitioner in the Court’s review.
Media coverage was immediate, though generally focused on the politics, not the legal issues, of the Court’s decision. UCLA Law Prof. Eugene Volokh has a legal summary with quotes from the Solicitor General’s plea to the Court, as does Amy Howe of SCotUSblog. General media: CNN; New York Times; Washington Post; Courthouse News Service.
Note: the image accompanying this post was generated by a Microsoft artificial intelligence program and is not intended to represent any specific individual.
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