The Supreme Court on Thursday quickly handed down a brief administrative stay after the Biden administration asked the Court to put a 5th Circuit Court of Appeals decision about its communication with social media companies on ice.
The administration had asked for an administrative stay to pause the ruling immediately while the Court considers its 40-page request to stay the 5th Circuit’s ruling until the Court decides whether to take up the case and, if it does, hands down a ruling. The administrative stay expires on Friday, September 22.
The administration had called the appellate court’s ruling “startling,” “novel and disruptive” and a “radical extension” of current doctrine.
The 5th Circuit’s Friday decision had narrowed the scope of a widely panned lower court decision, but still found that large swaths of the government had unconstitutionally coerced social media companies into moderating their content.
U.S. Solicitor General Elizabeth Prelogar, in the stay application, said that the government intends to file the petition for certiorari by October 13, an expedited timeline to let the Court hear the case this term. Prelogar added that the Court could consider the stay application its petition for certiorari if it wanted to speed up the procedure further.
“The implications of the Fifth Circuit’s holdings are startling,” Prelogar wrote. “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.”
Much of the case centers on government communication with tech companies during the COVID-19 pandemic, particularly its flagging of vaccine-related misinformation. The Fifth Circuit found the FBI, White House, Surgeon General and CDC to have “coerced” the companies in violation of their First Amendment rights.
In response, the administration charged the appellate court with contradicting “fundamental First Amendment principles.”
“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,” Prelogar wrote.
In its ruling late last week, the Fifth Circuit panel lightly slapped the wrist of Trump-appointed district Judge Terry Doughty, who’d handed down the initial, very expansive injunction.
“The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture,” the panel wrote. “As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.”
Still, Judges Don Willett, Edith Brown Clement and Jennifer Walker Elrod— all appointed by Republican presidents — accused the government of being over-the-top in its concern about the dangers certain social media posts could pose.
“The officials made inflammatory accusations, such as saying that the platforms were ‘poison[ing]’ the public, and ‘killing people,’” the panel wrote.
The panel’s tone was relatively mild compared to Doughty’s fuming about a “dystopian scenario,” in which the “United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
The case is one of many anti-administration lawsuits making its way through a familiar pipeline: Trump-appointed lower court judge to the Fifth Circuit to the Supreme Court.
It also has tie-ins to a perennial right-wing grievance: That they’re being “censored,” “shadow-banned” or otherwise seeing their content throttled by nefarious hybrid government-tech forces.
Fittingly, one of the plaintiffs in the case is Jim Hoft, the creator of Gateway Pundit, a far-right “news” site known for publishing conspiracy theories, hoaxes and misinformation.
“All five Individual Plaintiffs have stated in sworn declarations that their prior censorship has caused them to self-censor and carefully word social-media posts moving forward in hopes of avoiding suspensions, bans, and censorship in the future,” the 5th Circuit judges lamented.
Read the stay application here: