• by Wendy Davis  @wendyndavis, December 20, 2023

The Biden Administration is urging the Supreme Court to strike down a lower court injunction that could prevent officials from discussing controversial subjects with personnel at social media platforms.

The injunction, issued in September by the 5th Circuit Court of Appeals, prohibits officials in the White House, Surgeon General's office, Federal Bureau of Investigation and Centers for Disease Control from attempting to “coerce or significantly encourage a platform’s content-moderation decisions.”

The appellate court said when it issued the injunction that federal officials likely violated the First Amendment by pressuring social media platforms to suppress posts about topics including vaccines and COVID-19 and other topics.

The Supreme Court temporarily halted the injunction in September, but hasn't considered whether to more permanently set it aside.

On Tuesday, Solicitor General Elizabeth Prelogar argued in a written appeal to the Supreme Court that the injunction, if allowed to take effect, “would impose grave harms on the government and the public because it could chill vital governmental communications.”

She also urged the Supreme Court to reject the finding that the administration violated the First Amendment.

“Government officials are and must be free to inform, to persuade, and to criticize,” she wrote.

The solicitor general added that the 5th Circuit's injunction “imposed unprecedented limits on the ability of the president’s closest aides to speak about matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on CDC’s ability to relay public-health information.”

The dispute dates to last year, when attorneys general in Louisiana and Missouri, and several individuals alleged in that their social media posts relating to COVID-19 policies and vaccines were suppressed due to government pressure. The attorneys general and individuals specifically claimed that federal officials violated the First Amendment by wrongly pressuring tech platforms to “censor disfavored speakers and viewpoints.”

U.S. District Court Judge Terry Doughty in Monroe, Louisiana, sided with the plaintiffs and on July 4 issued a broad injunction prohibiting a numerous federal agencies and officials from attempting to persuade social media platforms to take down posts that are protected by the First Amendment.

The administration appealed Doughty's order to the 5th Circuit, which narrowed the injunction, but still prohibited some officials, including White House staff, from attempting to “coerce” or “significantly” encourage platforms' decisions about content moderation

The White House disputes that it “coerced” platforms into removing speech, writing that the platforms “often declined to remove flagged content.”

“Despite the platforms’ routine refusals to act in response to the government’s outreach, neither respondents nor the Fifth Circuit have identified even a single instance in which the government imposed any adverse consequences in retaliation,” the administration argues. “Indeed, Twitter ceased enforcement of its COVID-19 misinformation policy in November 2022, yet suffered no adverse consequences from the federal government.”